EX-4.2 4 exh4-2avmtsa.htm TRUST AND SERVICING AGREEMENT, DATED AS OF JUNE 29, 2018

Exhibit 4.2

 

EXECUTION VERSION

 

 

J.P. Morgan Chase Commercial Mortgage Securities Corp.,
as Depositor,

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Servicer,

 

CWCapital Asset Management LLC,
as Special Servicer,

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Administrator,

 

WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee

 

and

 

PARK BRIDGE LENDER SERVICES LLC,

 

as Operating Advisor

 

 

 

TRUST AND SERVICING AGREEMENT

 
Dated as of June 29, 2018

 

 

 

 

Aventura Mall Trust 2018-AVM
Commercial Mortgage Pass-Through Certificates, Series 2018-AVM

 

 

 

 

 

TABLE OF CONTENTS

 

      Page
       
1. DEFINITIONS  
       
  1.1. Definitions 3
  1.2. Interpretation 58
  1.3. Certain Calculations in Respect of the Trust Loan or the Mortgage Loan 59
     
2. DECLARATION OF TRUST; ORIGINAL ISSUANCE OF CERTIFICATES  
       
  2.1. Creation and Declaration of Trust; Conveyance of the Trust Loan 61
  2.2. Acceptance by the Trustee and the Certificate Administrator 64
  2.3. Representations and Warranties of the Trustee 67
  2.4. Representations and Warranties of the Certificate Administrator 68
  2.5. Representations and Warranties of the Servicer 69
  2.6. Representations and Warranties of the Special Servicer 71
  2.7. Representations and Warranties of the Depositor 72
  2.8. Representations and Warranties of the Operating Advisor 73
  2.9. Representations and Warranties Contained in the Trust Loan Purchase Agreement 75
  2.10. Execution and Delivery of Certificates; Issuance of Uncertificated Lower-Tier Interests 77
  2.11. Miscellaneous REMIC Provisions 77
  2.12. Resignation Upon Prohibited Risk Retention Affiliation 78
       
3. ADMINISTRATION AND SERVICING OF THE MORTGAGE LOAN  
       
  3.1. Servicer to Act as the Servicer; Special Servicer to Act as the Special Servicer 78
  3.2. Sub-Servicing Agreements 80
  3.3. Cash Management Account 82
  3.4. Collection Account, Companion Loan Distribution Account and Interest Reserve Account 82
  3.5. Distribution Account 89
  3.6. Foreclosed Property Account 90
  3.7. Appraisal Reductions 90
  3.8. Investment of Funds in the Collection Account and Any Foreclosed Property Account 94
  3.9. Payment of Taxes, Assessments, etc 96
  3.10. Appointment of Special Servicer 96
  3.11. Maintenance of Insurance and Errors and Omissions and Fidelity Coverage 103
  3.12. Procedures with Respect to Defaulted Mortgage Loan; Realization upon the Property 105

 

 -i-

 

 

  3.13. Certificate Administrator and Trustee to Cooperate; Release of Items in Mortgage File 108
  3.14. Title and Management of Foreclosed Property 108
  3.15. Sale of Foreclosed Property 110
  3.16. Sale of the Mortgage Loan 112
  3.17. Servicing Compensation 115
  3.18. Reports to the Certificate Administrator; Account Statements 119
  3.19. [Reserved] 120
  3.20. [Reserved] 120
  3.21. Access to Certain Documentation Regarding the Mortgage Loan and Other Information 121
  3.22. Inspections 122
  3.23. Advances 122
  3.24. Modifications of Mortgage Loan Documents 126
  3.25. Conflicts of Interests; Mandatory Resignation of Servicer and Special Servicer May Own Certificates; Conflicts of Interest 129
  3.26. The Operating Advisor 129
  3.27. Rating Agency Confirmation 135
  3.28. Miscellaneous Provisions 137
  3.29. Companion Loan Intercreditor Matters 138
  3.30. Additional Matters with Respect to the Trust Loan 139
  3.31. Credit Risk Retention 142
     
4. DISTRIBUTIONS AND STATEMENTS TO CERTIFICATEHOLDERS  
       
  4.1. Distributions 143
  4.2. Withholding Tax 147
  4.3. Allocation and Distribution of Prepayment Premiums 147
  4.4. Statements to Certificateholders 148
  4.5. Investor Q&A Forum; Investor Registry and Rating Agency Q&A Forum 151
     
5. THE CERTIFICATES  
       
  5.1. The Certificates 154
  5.2. Form and Registration 156
  5.3. Registration of Transfer and Exchange of Certificates 158
  5.4. Mutilated, Destroyed, Lost or Stolen Certificates 165
  5.5. Persons Deemed Owners 166
  5.6. Access to List of Certificateholders’ Names and Addresses; Special Notices 166
  5.7. Maintenance of Office or Agency 167
       
6. THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER  
       
  6.1. Respective Liabilities of the Depositor, the Servicer and the Special Servicer 167
  6.2. Merger or Consolidation of the Servicer or the Special Servicer 167

 

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  6.3. Limitation on Liability of the Depositor, the Servicer, the Special Servicer, the Operating Advisor and Others 167
  6.4. Servicer and Special Servicer Not to Resign; Replacement of Servicer or Special Servicer 169
  6.5. Ethical Wall 170
  6.6. Indemnification by the Servicer, the Special Servicer, the Operating Advisor and the Depositor 171
     
7. SERVICER TERMINATION EVENTS; TERMINATION OF SPECIAL SERVICER WITHOUT CAUSE  
       
  7.1. Servicer Termination Events; Special Servicer Termination Events 172
  7.2. Trustee to Act; Appointment of Successor 180
  7.3. [Reserved] 182
  7.4. Other Remedies of Trustee 182
  7.5. Waiver of Past Servicer Termination Events and Special Servicer Termination Events 182
  7.6. Trustee as Maker of Advances 183
     
8. THE TRUSTEE AND THE CERTIFICATE ADMINISTRATOR  
       
  8.1. Duties of the Trustee and the Certificate Administrator 184
  8.2. Certain Matters Affecting the Trustee and the Certificate Administrator 186
  8.3. Neither the Trustee nor the Certificate Administrator is Liable for Certificates or the Mortgage Loan 188
  8.4. Trustee and Certificate Administrator May Own Certificates 190
  8.5. Trustee’s and Certificate Administrator’s Fees and Expenses 190
  8.6. Eligibility Requirements for the Trustee and the Certificate Administrator; Errors and Omissions Insurance 192
  8.7. Resignation and Removal of the Trustee or the Certificate Administrator 193
  8.8. Successor Trustee or Successor Certificate Administrator 196
  8.9. Merger or Consolidation of the Trustee or the Certificate Administrator 196
  8.10. Appointment of Co-Trustee or Separate Trustee 197
  8.11. Appointment of Authenticating Agent and Custodian 198
  8.12. Indemnification by the Trustee and the Certificate Administrator 199
  8.13. Certificate Administrator and Servicer Not Responsible for Inconsistent Payment Information 200
  8.14. Access to Certain Information 200
     
9. Certain Matters Relating to the Directing CERTIFICATEHOLDER  
       
  9.1. Selection and Removal of the Directing Certificateholder 209
  9.2. Limitation on Liability of Directing Certificateholder; Acknowledgements of the Certificateholders 211
  9.3. Rights and Powers of the Directing Certificateholder 212
  9.4. Directing Certificateholder Contact with Servicer and Special Servicer 216

 

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10. TERMINATION  
       
  10.1. Termination 216
  10.2. Additional Termination Requirements 217
  10.3. Trusts Irrevocable 217
     
11. MISCELLANEOUS PROVISIONS  
       
  11.1. Amendment 217
  11.2. Recordation of Agreement; Counterparts 221
  11.3. Governing Law; Waiver of Trial by Jury; Submission to Jurisdiction 222
  11.4. Notices 222
  11.5. Notices to the Rating Agencies 226
  11.6. Severability of Provisions 227
  11.7. Limitation on Rights of Certificateholders 227
  11.8. Certificates Nonassessable and Fully Paid 228
  11.9. Reproduction of Documents 228
  11.10. No Partnership 228
  11.11. Actions of Certificateholders 229
  11.12. Successors and Assigns 229
  11.13. Acceptance by Authenticating Agent, Certificate Registrar 229
  11.14. Streit Act 230
  11.15. Assumption by Trust of Duties and Obligations of the Trust Loan Sellers Under the Mortgage Loan Documents 230
  11.16. Grant of a Security Interest 230
  11.17. Cooperation with the Trust Loan Sellers with Respect to Rights Under the Mortgage Loan Agreement 230
     
12. REMIC ADMINISTRATION  
       
  12.1. REMIC Administration 231
  12.2. Foreclosed Property 235
  12.3. Prohibited Transactions and Activities 236
  12.4. Indemnification with Respect to Certain Taxes and Loss of REMIC Status 237
     
13. EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE  
       
  13.1. Intent of the Parties; Reasonableness 238
  13.2. Succession; Sub-Servicers; Subcontractors 238
  13.3. Other Securitization Trust’s Filing Obligations 240
  13.4. Form 10-D Disclosure 240
  13.5. Form 10-K Disclosure 241
  13.6. Form 8-K Disclosure 241
  13.7. Annual Compliance Statements 242
  13.8. Annual Reports on Assessment of Compliance with Servicing Criteria 243
  13.9. Annual Independent Public Accountants’ Servicing Report 244
  13.10. Significant Obligor 245
  13.11. Sarbanes-Oxley Backup Certification 246

 

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  13.12. Indemnification 247
  13.13. Amendments 248
  13.14. Termination of the Certificate Administrator 248
  13.15. Termination of Sub-Servicing Agreements 248
  13.16. Notification Requirements and Deliveries in Connection with Securitization of a Companion Loan 248

 

EXHIBITS

 

Exhibit A-1 Form of Class A Certificates
Exhibit A-2 Form of Class B Certificates
Exhibit A-3 Form of Class C Certificates
Exhibit A-4 Form of Class D Certificates
Exhibit A-5 Form of Class HRR Certificates
Exhibit A-6 Form of Class R Certificates
Exhibit B Form of Request for Release
Exhibit C Form of Transfer Certificate for Rule 144A Global Certificate to Temporary Regulation S Global Certificate
Exhibit D Form of Transfer Certificate for Rule 144A Global Certificate to Regulation S Global Certificate
Exhibit E Form of Transfer Certificate for Temporary Regulation S Global Certificate to Rule 144A Global Certificate during Restricted Period
Exhibit F Form of Certification to be given by Beneficial Owner of Temporary Regulation S Global Certificate
Exhibit G Form of Transfer Certificate of Non-Book Entry Certificate to Temporary Regulation S Global Certificate
Exhibit H Form of Transfer Certificate of Non-Book Entry Certificate to Regulation S Global Certificate
Exhibit I Form of Transfer Certificate of Non-Book Entry Certificate to Rule 144A Global Certificate
Exhibit J-1 Form of Affidavit Pursuant to Section 860E(e) of the Internal Revenue Code of 1986
Exhibit J-2 Form of Transferor Letter
Exhibit J-3 Form of ERISA Representation Letter
Exhibit J-4 Form of Transferee Certificate for Transfers of Risk Retention Certificates
Exhibit J-5 Form of Transferor Certificate for Transfer of Risk Retention Certificates
Exhibit J-6 Form of Request of Sponsor Consent for Release of the HRR Certificates
Exhibit K-1 Form of Investor Certification for Non-Borrower Affiliates
Exhibit K-2 Form of Investor Certification for Borrower Affiliates
Exhibit L Applicable Servicing Criteria
Exhibit M Form of NRSRO Certification
Exhibit N-1 [RESERVED]
Exhibit N-2 [RESERVED]
Exhibit O Form of Online Market Data Provider Certificate
Exhibit P Form of Investment Representation Letter
Exhibit Q CREFC® Payment Information
Exhibit R Additional Form 10-D Disclosure

 

 -v-

 

 

Exhibit S Additional Form 10-K Disclosure
Exhibit T Form 8-K Disclosure Information
Exhibit U Additional Disclosure Notification
Exhibit V Initial Sub-Servicers
Exhibit W Form of Annual Compliance Statement
Exhibit X Form of Report on Assessment of Compliance with Servicing Criteria
Exhibit Y-1 Form of Certification to be Provided to Depositor by Servicer
Exhibit Y-2 Form of Certification to be Provided to Depositor by Special Servicer
Exhibit Y-3 Form of Certification to be Provided to Depositor by Certificate Administrator
Exhibit Y-4 Form of Certification to be Provided to Depositor by Trustee
Exhibit Y-5 Form of Certification to be Provided to Depositor by Operating Advisor
Exhibit Z Form of Operating Advisor Annual Report
Exhibit AA Form of Notice from Operating Advisor Recommending Replacement of Special Servicer
Exhibit BB Form of Certificate Administrator Receipt of Risk Retention Certificates

 

 -vi-

 

 

THIS TRUST AND SERVICING AGREEMENT (“Agreement”) is dated as of June 29, 2018 among J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Servicer, CWCapital Asset Management LLC, as Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services, LLC, as Operating Advisor.

 

INTRODUCTORY STATEMENT

 

Terms not defined in this Introductory Statement shall have the meanings specified in Article 1 hereof.

 

JPMorgan Chase Bank, National Association (together with its successors-in-interest, “JPMCB”), Deutsche Bank AG, New York Branch (together with its successors-in-interest, “Deutsche Bank”), Morgan Stanley Bank, N.A. and Wells Fargo Bank, National Association (together with its successors-in-interest, “WFB”) co-originated a ten (10)-year fixed rate, interest-only mortgage loan (the “Mortgage Loan”) pursuant to that certain Loan Agreement, dated as of June 7, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “Mortgage Loan Agreement”), by and among Aventura Mall Venture (the “Borrower”), as borrower, and JPMCB, Deutsche Bank, MSBNA, and WFB, as lender.

 

The Mortgage Loan consists of (a) a loan that has an unpaid principal balance as of the Closing Date of $750,000,000 (the “Trust Loan”) and is evidenced by the promissory notes designated as A-1-A, A-1-B, A-1-C, A-1-D, B-1, B-2, B-3 and B-4 (as the same may hereafter be amended, restated, replaced, extended, renewed, supplemented, consolidated, severed, split or otherwise modified, the “Trust Notes”), and (b) loans that have an aggregate unpaid principal balance as of the Closing Date of $1,000,000,000 (the “Companion Loans”) and are evidenced by the promissory notes designated as A-2-A-1, A-2-A-2, A-2-A-3, A-2-A-4, A-2-A-5, A-2-B-1, A-2-B-2, A-2-B-3, A-2-B-4, A-2-B-5, A-2-C-1, A-2-C-2, A-2-C-3, A-2-C-4, A-2-C-5, A-2-D-1, A-2-D-2, A-2-D-3, A-2-D-4 and A-2-D-5 (as the same may hereafter be amended, restated, replaced, extended, renewed, supplemented, consolidated, severed, split or otherwise modified, the “Companion Loan Notes”). The Trust Notes and the Companion Loan Notes are collectively referred to herein as the “Notes”.

 

The Trust Loan was sold and assigned by JPMCB, German American Capital Corporation, Morgan Stanley Mortgage Capital Holdings LLC (“MSMCH”) and WFB (in such capacity, the “Trust Loan Sellers”) to the Depositor pursuant to a trust loan purchase and sale agreement, dated as of June 29, 2018 (the “Trust Loan Purchase Agreement”), by and among the Trust Loan Sellers and the Depositor. The Companion Loans are not part of the Trust Fund. The relative rights of the respective lenders in respect of the Mortgage Loan are set forth in a co-lender agreement dated as of June 7, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “Co-Lender Agreement”), among the holders of the Trust Notes and the holders of the Companion Loan Notes. From and after the Closing Date, the entire Mortgage Loan is to be serviced and administered in accordance with this Agreement.

 

 

 

 

As provided for herein, the Certificate Administrator shall elect or shall cause elections to be made to treat designated portions of the Trust Fund for federal income tax purposes as two separate real estate mortgage investment conduits (the “Upper-Tier REMIC” and the “Lower-Tier REMIC” and, each, a “Trust REMIC”). The Regular Certificates will represent the “regular interests” in the Upper-Tier REMIC, as further described herein. Each Class of Uncertificated Lower-Tier Interests will represent a single class of “regular interests” in the Lower-Tier REMIC as further described herein. The Class R Certificates will evidence the sole Class of “residual interests” in each of the Upper-Tier REMIC and Lower-Tier REMIC for purposes of the REMIC Provisions under federal income tax law.

 

In exchange for the Trust Loan and the Uncertificated Lower-Tier Interests, the Trust will issue to the Depositor the Class A, Class B, Class C, Class D, Class HRR and Class R Certificates (collectively, the “Certificates”), which Certificates in the aggregate will evidence the entire ownership interest in the Trust. The Trust Fund consists principally of the Trust Loan, the Mortgage Loan Documents (exclusive of the rights of the Companion Loan Holders thereunder) and all payments under, and proceeds of, the Trust Loan from and after the Cut-off Date.

 

The Depositor intends to sell the Certificates to the Initial Purchasers in an offering exempt from the registration requirements of the federal securities laws.

 

UPPER-TIER REMIC

 

As further described in Section 2.11, the Class A, Class B, Class C, Class D and Class HRR Certificates will evidence “regular interests” in the Upper-Tier REMIC created hereunder. The Class UT-R Interest will constitute the sole Class of “residual interests” in the Upper-Tier REMIC created hereunder, and will be evidenced by the Class R Certificates. The following table sets forth the class designation, the Pass-Through Rate and the aggregate initial Certificate Balance (the “Original Certificate Balance”) for each Class of Certificates and the Class UT-R Interest comprising the interests in the Upper-Tier REMIC created hereunder:

 

Class
Designation 

Pass-Through Rate

(per annum) 

Original Certificate
Balance 

Class A 4.1123%(1) $346,700,000
Class B 4.1123%(1) $60,000,000
Class C 4.1123%(1) $181,300,000
Class D 4.1123%(1) $118,500,000
Class HRR 4.1123%(1) $43,500,000
Class UT-R None(4) None(2)

 

 

 

(1)The Pass-Through Rate applicable to each of the Class A, Class B, Class C, Class D and Class HRR Certificates will be per annum rate equal to the WAC Rate. During the initial Certificate Interest Accrual Period, it is expected that the Pass-Through Rate for the Class A, Class B, Class C, Class D and Class HRR Certificates will each equal approximately 4.1123%.

 

(2)The Class UT-R Interest (evidenced by the Class R Certificates) will not have a Certificate Balance and will not bear interest. Any Available Funds remaining in the Upper-Tier Distribution Account, after all required distributions under this Agreement have been made to each other Class of Certificates and the Class LT-R Interest, will be distributed to the Holders of the Class R Certificates in respect of the UT-R Interest.

 

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LOWER-TIER REMIC

 

As further described in Section 2.11, the Class LA, Class LB, Class LC, Class LD, Class LE and Class HRR Uncertificated Interests will evidence “regular interests” in the Lower-Tier REMIC created hereunder. The Class LT-R Interest will constitute the sole Class of “residual interests” in the Lower-Tier REMIC created hereunder and will be evidenced by the Class R Certificates. The following table sets forth the initial Lower-Tier Principal Amounts and Pass-Through Rates for the Uncertificated Lower-Tier Interests and the Class LT-R Interest comprising the interests in the Lower-Tier REMIC created hereunder:

 

Class
Designation 

Pass-Through Rate 

Original Lower-Tier
Principal Amount 

Class LA (1) $346,700,000
Class LB (1) $60,000,000
Class LC (1) $181,300,000
Class LD (1) $181,500,000
Class LHRR (1) $43,500,000
Class LT-R None(2) None(2)

 

 

 

(1)For any Distribution Date, the Pass-Through Rate for each Class of Uncertificated Lower-Tier Interests shall be the Net Trust Note Rate of the Trust Notes for such Distribution Date, as described under “Upper-Tier REMIC” above.

 

(2)The Class LT-R Interest (evidenced by the Class R Certificates) will not have a Certificate Balance and will not bear interest. Any Available Funds constituting assets remaining in the Lower-Tier Distribution Account after distributing the Lower-Tier Distribution Amount shall be distributed to the Holders of the Class R Certificates in respect of the Class LT-R Interest (but only to the extent of the Available Funds for such Distribution Date, if any, remaining in the Lower-Tier Distribution Account).

 

All covenants and agreements made by the Depositor herein are for the benefit and security of the Certificateholders and the Trustee as Holder of the Uncertificated Lower-Tier Interests. The Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Operating Advisor are entering into this Agreement, and the Trustee is accepting the trusts created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.

 

W I T N E S S E T H  T H A T:

 

In consideration of the mutual agreements herein contained, the parties hereto agree as follows:

 

1.       DEFINITIONS

 

1.1.       Definitions. Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings and such meanings shall be equally applicable to the singular and plural forms of such terms, as the context may require.

 

“17g-5 Information Provider”: The Certificate Administrator.

 

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“17g-5 Information Provider’s Website”: The internet website of the 17g-5 Information Provider that will initially be located within the Certificate Administrator’s Website (www.ctslink.com), under the ‘NRSRO’ tab on the page relating to this transaction. Such website shall provide means of navigation for the Depositor and each NRSRO (including the Rating Agencies) to the portion of the Certificate Administrator’s Website available to Privileged Persons.

 

“A Notes”: The A-1 Notes and the A-2 Notes.

 

“A-1 Notes”: The promissory notes designated as A-1-A, A-1-B, A-1-C and A-1-D.

 

“A-2 Notes”: The promissory notes designated as A-2-A-1, A-2-A-2, A-2-A-3, A-2-A-4, A-2-A-5, A-2-B-1, A-2-B-2, A-2-B-3, A-2-B-4, A-2-B-5, A-2-C-1, A-2-C-2, A-2-C-3, A-2-C-4, A-2-C-5, A-2-D-1, A-2-D-2, A-2-D-3, A-2-D-4 and A-2-D-5.

 

“Acceptable Insurance Default”: Any default arising when the Mortgage Loan Documents require that the Borrower must maintain all risk casualty insurance or other insurance that covers damages or losses arising from acts of terrorism and the Special Servicer has determined, in its reasonable judgment in accordance with Accepted Servicing Practices, that (i) such insurance is not available at commercially reasonable rates and the subject hazards are not commonly insured against by prudent owners of similar real properties located in or near the geographic region in which the Property is located (but only by reference to such insurance that has been obtained by such owners at current market rates), or (ii) such insurance is not available at any rate. Each of the Servicer (at its own expense) and the Special Servicer (as a Trust Fund Expense) shall be entitled to rely on insurance consultants in making the determinations described in this definition.

 

“Accepted Servicing Practices”: As defined in Section 3.1.

 

“Acquisition Date”: The date upon which, under the Code (and in particular the REMIC Provisions and Section 856(e) of the Code), the Trust Fund is deemed to have acquired the Property.

 

“Act”: The Securities Act of 1933, as it may be amended from time to time.

 

“Additional Disclosure Notification”: The form of notification to be included with any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information which is attached to this Agreement as Exhibit U.

 

“Additional Compensation”: Default Interest and late payment fees (after all payments pursuant to Section 3.4(c)(iv) and 3.4(c)(v)), Assumption Fees, Assumption Application Fees, substitution fees, release fees (including, without limitation, any fees payable in connection with a defeasance), Modification Fees, consent fees, amounts collected for checks returned for insufficient funds, charges for beneficiary statements or demands, other loan processing fees, review fees and similar fees and expenses to which the Servicer and the Special Servicer, as applicable, is entitled (to the extent permitted by (or not otherwise prohibited by) and specifically allocated to such amounts in accordance with the terms of the Mortgage Loan

 

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Documents or pursuant to this Agreement and any income earned (net of losses (subject to Section 3.8(b)) on the investment of funds deposited in the Collection Account, any Foreclosed Property Account and any Reserve Account pursuant to Section 3.8 of this Agreement.

 

“Additional Form 10-D Disclosure” The information described in the Form 10-D items set forth under the “Item on Form 10-D” column on Exhibit R hereto.

 

“Additional Form 10-K Disclosure” The information described in the Form 10-K items set forth under the “Item on Form 10-K” column on Exhibit S hereto.

 

“Additional Servicer”: Each Affiliate of the Servicer or the Special Servicer that Services the Mortgage Loan and each Person who is not an Affiliate of the Servicer, other than the Special Servicer or the Certificate Administrator, who Services the Mortgage Loan as of any date of determination.

 

“Administrative Advances”: As defined in Section 3.23(b).

 

“Advance”: Any Administrative Advance, Monthly Payment Advance or any Property Protection Advance.

 

“Advance Rate”: As defined in Section 3.23(d).

 

“Adverse REMIC Event”: As defined in Section 12.1(k).

 

“Affiliate”: With respect to any specified Person, any other Person, directly or indirectly, controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract, relation to individuals or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing. The Trustee and/or the Certificate Administrator may obtain and rely upon an Officer’s Certificate of the Servicer, the Special Servicer, the Trustee (in the case of the Certificate Administrator), the Certificate Administrator (in the case of the Trustee), the Operating Advisor, a Loan Party or the Depositor, as applicable, to determine whether any Person is an Affiliate of the Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, a Loan Party or the Depositor.

 

“Agreement”: This Trust and Servicing Agreement (including all exhibits hereto) and all amendments and supplements hereto.

 

“Annual Budget”: As defined in the Mortgage Loan Agreement.

 

“Applicable Servicing Criteria”: With respect to the Servicer, the Special Servicer or any Servicing Function Participant, the Servicing Criteria applicable to it, as set forth on Exhibit L. For clarification purposes, multiple parties can have responsibility for the same Applicable Servicing Criteria and with respect to a Servicing Function Participant engaged by the Servicer or the Special Servicer, the term “Applicable Servicing Criteria” may refer to a

 

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portion of the Applicable Servicing Criteria applicable to the Servicer or the Special Servicer, as the case may be.

 

“Applicable Banking Law”: As defined in Section 8.2(d).

 

“Applied Realized Loss Amount”: All reductions in the Certificate Balance of a Class of Certificates in respect of Realized Losses as described in Section 4.1(g).

 

“Appraisal”: With respect to the Property or the Foreclosed Property, an appraisal of such Property or Foreclosed Property, conducted by an Independent Appraiser in accordance with the standards of the Appraisal Institute and certified by such Independent Appraiser as having been prepared in accordance with the requirements of the Standards of Professional Practice of the Appraisal Institute with an “MAI” designation and the Uniform Standards of Professional Appraisal Practice of the Appraisal Foundation, as well as the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended; provided, that after an initial “Appraisal” has been obtained pursuant to the terms of this Agreement, an update of such initial Appraisal shall be considered an “Appraisal” hereunder for all purposes. All Appraisals (and updates thereof) obtained pursuant to the terms of this Agreement shall include a valuation using the “income capitalization – discounted cash flow approach” and set forth the discount rate and terminal capitalization rate utilized by the Independent Appraiser. All calculations under this Agreement requiring that a “value” or “appraised value” be used with respect to the Property or the Foreclosed Property (as applicable) shall use the most recently determined appraised value set forth in an Appraisal (or update thereof) unless a different valuation is specifically required (such as the appraised value of the Property as of the Origination Date). With respect to any Appraisal Reduction Amount calculated for purposes of determining an Appraisal Reduction Event, the appraised value (as determined by an updated Appraisal) of the Property will be determined on an “as-is” basis, based upon the current physical condition, use and zoning of the Property as of the date of the Appraisal.

 

“Appraisal Reduction Amount”: As of any date of determination, an amount equal to the excess of (i) the outstanding principal balance of the Mortgage Loan on such date plus the sum of (A) all accrued and unpaid interest on each Note at the applicable Note Rate, (B) all unreimbursed Administrative Advances, Property Protection Advances and interest on all Advances at the Advance Rate in respect of the Mortgage Loan or the Property and interest on all Companion Loan Advances, (C) the amount of any Advances and interest thereon previously reimbursed from principal collections on the Mortgage Loan that have not otherwise been recovered from the Borrower, (D) all currently due and unpaid real estate taxes and assessments and insurance premiums and all other amounts, including, if applicable, ground rents, due and unpaid in respect of the Property (which taxes, premiums and other amounts have not been the subject of an Advance) and (E) to the extent not duplicative of amounts in clauses (B), (C) or (D), all unpaid Trust Fund Expenses then due under this Agreement over (ii) the sum of (A) 90% of the appraised value (as determined by an Appraisal) of the Property securing the Mortgage Loan less the amount of any liens (exclusive of Permitted Encumbrances) on the Property senior to the lien of the related Mortgage Loan Documents plus (B) any escrows with respect to the Mortgage Loan, including for taxes, insurance premiums and ground rent, if any. The Trust Loan and the Companion Loans shall be treated as a single mortgage loan for purposes of calculating the Appraisal Reduction Amount. Any Appraisal Reduction Amounts with respect to

 

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the Mortgage Loan shall be allocated, first, to the B Note, up to the full outstanding principal balance thereof, and then to the A Notes, on a pro rata and pari passu basis, up to the full outstanding principal balance thereof. Any Appraisal Reduction Amount allocated to the A Notes will be allocated to the Trust A Note and the Companion Loan A Notes, on a pro rata and pari passu basis, based on their respective outstanding principal balances thereof.

 

“Appraisal Reduction Event”: The earliest of (i) 60 days after an uncured payment delinquency (other than a delinquency in respect of the Balloon Payment) occurs in respect of the Mortgage Loan, (ii) 90 days after an uncured delinquency occurs in respect of the Balloon Payment for the Mortgage Loan unless a refinancing is anticipated within 120 days after the Maturity Date of the Mortgage Loan (as evidenced by a fully executed term sheet or written refinancing commitment or a signed purchase and sale agreement in a manner consistent with CMBS market practices and that is satisfactory in form and substance to the Servicer from an acceptable lender or purchaser delivered on or prior to the due date of such Balloon Payment which provides that such refinancing or sale will occur within 120 days after the Maturity Date), in which case 120 days after such uncured delinquency, (iii) 60 days after a reduction in Monthly Payments or Balloon Payment or a material adverse economic change with respect to the terms of the Mortgage Loan has become effective, (iv) 60 days after an extension of the Maturity Date of the Mortgage Loan (except for an extension within the time periods described in clause (ii) above), (v) immediately after a receiver has been appointed in respect of the Property securing the Mortgage Loan on behalf of the Trust or any other creditor, (vi) immediately after the Borrower or Guarantor declares, or becomes the subject of, bankruptcy, insolvency or similar proceedings, admits in writing the inability to pay its debts as they come due or makes an assignment for the benefit of creditors, or (vii) immediately after the Property securing the Mortgage Loan becomes a Foreclosed Property.

 

“ASR Consultation Process”: As defined in Section 3.10(i).

 

“Asset Status Report”: As defined in Section 3.10(i).

 

“Assignment of Management Agreement”: With respect to the Property, as defined in the Mortgage Loan Agreement.

 

“Assignment of Mortgage”: An assignment of the applicable Mortgage without recourse, notice of transfer or equivalent instrument, in recordable form, which is sufficient under the laws of the jurisdiction in which the Property is located to reflect of record the assignment of the Mortgage to the Trustee on behalf of the Trust Fund; provided, however, that the Trustee, the Certificate Administrator, the Servicer and the Special Servicer shall not be responsible for determining whether any such assignment is legally sufficient or in recordable form.

 

“Assumed Monthly Payment”: With respect to the Trust Loan for any Distribution Date (including any Distribution Date following a delinquency in the payment of the Balloon Payment or the foreclosure of the Trust Loan or acceptance by the Trustee on behalf of the Trust and the Companion Loan Holders of a deed-in-lieu of foreclosure or comparable conversion of the Trust Loan), shall be equal to the scheduled monthly payment of interest that would have been due in respect of the Trust Loan on its Maturity Date (excluding Default

 

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Interest) and each subsequent Payment Date (or Assumed Payment Date) if the Trust Loan had been required to continue to accrue interest in accordance with its terms (other than Default Interest), in effect immediately prior to, and without regard to the occurrence of the Maturity Date or after the occurrence of a foreclosure of the Mortgage Loan or acceptance by the Trustee of a deed-in-lieu of foreclosure or comparable conversion of the Mortgage Loan, in respect of the Trust Loan on the last Payment Date (or Assumed Payment Date) prior to its foreclosure or acceptance of a deed-in-lieu, in each case as such terms may have been modified, and such Maturity Date may have been extended, in connection with a bankruptcy or similar proceeding involving the Borrower or otherwise or a modification, waiver or amendment granted or agreed to by the Servicer or Special Servicer.

 

“Assumed Payment Date”: With respect to the Trust Loan for any calendar month following a delinquency in the payment of the Balloon Payment or the foreclosure of the Mortgage Loan or acceptance by the Trustee on behalf of the Trust Fund and the Companion Loan Holders of a deed-in-lieu of foreclosure or comparable conversion of the Mortgage Loan, the date that would have been the Payment Date in such calendar month if the Maturity Date or the foreclosure of the Mortgage Loan or acceptance by the Trustee on behalf of the Trust Fund and the Companion Loan Holders of a deed-in-lieu of foreclosure or comparable conversion of the Mortgage Loan had not occurred.

 

“Assumption Application Fees”: With respect to the Mortgage Loan, any and all assumption application fees actually paid by or on behalf of the Borrower in accordance with the Mortgage Loan Documents, with respect to any application submitted to the Servicer or the Special Servicer for a proposed assumption or substitution transaction or proposed transfer of an interest in the Borrower.

 

“Assumption Fees”: Any and all assumption fees actually paid by or on behalf of the Borrower in accordance with the Mortgage Loan Documents, with respect to any assumption or substitution agreement entered into by the Servicer or the Special Servicer or paid by or on behalf of the Borrower with respect to any transfer of an interest in the Borrower.

 

“Authenticating Agent”: As defined in Section 8.11(a).

 

“Available Funds”: On each Distribution Date, an amount equal to (i) all amounts (other than Yield Maintenance Premiums and Yield Maintenance Default Premiums) received in respect of the Mortgage Loan during the related Collection Period or advanced in respect of interest with respect to such Distribution Date (including, without limitation, any Repurchase Price for the Trust Loan or purchase price of the Mortgage Loan received by the Trust, Condemnation Proceeds, Insurance Proceeds and/or Liquidation Proceeds received by the Trust and for the Distribution Date occurring in July 2018, the Interest Deposit Amount), plus (ii) if such Distribution Date is the Distribution Date occurring in March of each year (or February, if such Distribution Date is the final Distribution Date), Withheld Amounts to be withdrawn from the Interest Reserve Account for such Distribution Date, minus (iii) an amount equal to the applicable Withheld Amount in the case of the February Distribution Date and any January Distribution Date occurring in a year that is not a leap year (unless, in either case, such Distribution Date is the final Distribution Date), minus (iv) Trust Fund Expenses, any portion of amounts received in respect of the Mortgage Loan that are required to be distributed to the

 

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Companion Loan Holders pursuant to the terms of the Co-Lender Agreement and any other Available Funds Reduction Amount for such Distribution Date.

 

“Available Funds Reduction Amount”: As of each Distribution Date, all amounts withdrawn on the related Remittance Date or during the related Collection Period from the Collection Account pursuant to Section 3.4(c).

 

“B Note”: The promissory notes designated as B-1, B-2, B-3 and B-4.

 

“Balloon Payment”: The payment of the outstanding principal balance of the Mortgage Loan, Trust Loan or a Companion Loan, as applicable, together with all unpaid interest, due and payable on the Maturity Date or such other date on which the outstanding principal balance of the Mortgage Loan, the Trust Loan or the Companion Loans become due and payable, whether by declaration of acceleration, or otherwise.

 

“Barclays”: As defined in the Introductory Statement.

 

“Base Interest Fraction”: With respect to any principal prepayment on the Trust Loan and with respect to any Class of Sequential Pay Certificates, a fraction (A) whose numerator is the greater of (x) zero and (y) the positive difference between (i) the Pass-Through Rate on such Class of Certificates for the related Distribution Date, and (ii) the Prepayment Rate used in calculating the Yield Maintenance Default Premiums, with respect to such principal prepayment, and (B) whose denominator is the positive difference between (i) the Mortgage Rate on such Mortgage Loan and (ii) the Prepayment Rate used in calculating the Yield Maintenance Default Premiums, as applicable, with respect to such principal prepayment; provided, however, that under no circumstances will the Base Interest Fraction be greater than one. If the Prepayment Rate is greater than the Mortgage Rate on such Mortgage Loan, then the Base Interest Fraction shall equal zero.

 

“Beneficial Owner”: With respect to a Global Certificate, the Person who is the beneficial owner of such Certificate as reflected on the books of the Depository or on the books of a Person maintaining an account with such Depository (directly as a Depository Participant or indirectly through a Depository Participant, in accordance with the rules of such Depository). Each of the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and the Servicer, as applicable, shall have the right to require, as a condition to acknowledging the status of any Person as a Beneficial Owner under this Agreement, that such Person provide an Investor Certification.

 

“Borrower”: As defined in the Introductory Statement.

 

“Borrower Affiliate”: Any of the Borrower, the Borrower Sponsors, the Guarantor (or any replacement guarantor), the Manager, the general partner or managing member of any of the foregoing or any of their respective Control Affiliates or agents.

 

“Borrower Sponsors”: Turnberry Retail Holding, L.P. and Simon Property Group, L.P.

 

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“Business Day”: Any day other than a Saturday, Sunday or any other day on which any of the following are not open for business: (a) national banks in New York, New York, Oakland, California or Charlotte, North Carolina, (b) the place of business of the Trustee, the Certificate Administrator, the Servicer, the Special Servicer or the financial institution that maintains the Collection Account for or on behalf of the Servicer or the Special Servicer or any reserve accounts for the Mortgage Loan, or (c) the New York Stock Exchange or the Federal Reserve Bank of New York.

 

“Cash Management Account”: As defined in the Mortgage Loan Agreement.

 

“Cash Management Agreement”: As defined in the Mortgage Loan Agreement.

 

“CERCLA”: The Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S. C. §§ 9601 et seq., as amended.

 

“Certificate”: Any Class A, Class B, Class C, Class D, Class HRR and Class R Certificate.

 

“Certificate Administrator”: Wells Fargo Bank, National Association, or any successor Certificate Administrator appointed as herein provided. Wells Fargo Bank, National Association will perform its obligations through its Corporate Trust Services division.

 

“Certificate Administrator Fee”: With respect to the Trust Loan and for any Distribution Date, an amount accrued during the related Mortgage Loan Interest Accrual Period at the Certificate Administrator Fee Rate on the outstanding principal balance of the Trust Loan as of the close of business on the Distribution Date in such Mortgage Loan Interest Accrual Period; provided that such amounts shall be computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the Trust Loan is computed and shall be prorated for partial periods. A portion of the Certificate Administrator Fee, namely the Trustee Fee, shall be payable to the Trustee. For the avoidance of doubt, the Certificate Administrator Fee shall be deemed to be payable from the Lower-Tier REMIC.

 

“Certificate Administrator Fee Rate”: With respect to the Trust Loan, a rate equal to 0.00380% per annum, calculated on the same interest accrual basis as the Trust Loan. A portion of the Certificate Administrator Fee Rate shall constitute the Trustee Fee Rate and shall be payable to the Trustee at a rate of $250 per month.

 

“Certificate Administrator’s Website”: The internet website of the Certificate Administrator, initially located at www.ctslink.com.

 

“Certificate Balance”: With respect to each outstanding Class of Sequential Pay Certificates at any date, an amount equal to the initial certificate balance of such Class as set forth in the Introductory Statement less the sum of (a) all amounts distributed to Certificateholders of such Class on all previous Distribution Dates and treated under this Agreement as allocable to principal and (b) the aggregate amount of Realized Losses allocated to such Class of Certificates, on all previous Distribution Dates, if any, pursuant to Section 4.1(g).

 

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With respect to any individual Certificate in any Class, the product of (x) the Percentage Interest represented by such Certificate multiplied by (y) the Certificate Balance of such Class.

 

“Certificate Interest Accrual Period”: With respect to any Distribution Date and with respect to each Class of Regular Certificates, the calendar month preceding the month in which such Distribution Date occurs.

 

“Certificate Register” and “Certificate Registrar”: The register maintained and the registrar appointed pursuant to Section 5.3(a).

 

“Certificateholder” or “Holder”: With respect to any Certificate, the Person in whose name a Certificate is registered in the Certificate Register; provided, however, that solely for the purposes of providing, distributing or otherwise making available any reports, statements, communications or other information as required or permitted to be provided, distributed or made available to a Certificateholder under this Agreement, a Certificateholder shall include any Beneficial Owner to the extent that the Person providing, distributing or making available such reports, statements, communications or other information has received from such Beneficial Owner an Investor Certification that such Person is a Beneficial Owner; and provided further that, solely for the purposes of giving any consent, waiver, request or demand or taking any action (including, without limitation, selecting or appointing a Directing Certificateholder), any Certificate beneficially owned by the Servicer, the Special Servicer, the Trustee, the Certificate Administrator, any Borrower Affiliate, the Manager or any of their sub-servicers, or any of their respective Affiliates or agents, shall be deemed not to be outstanding and the Voting Rights to which it is entitled and the Certificate Balance of such Certificate shall not be taken into account in determining whether the requisite percentage of Voting Rights and/or of the Certificate Balance of the Certificates or any Class of Certificates necessary to take any such action or effect any such consent, waiver, request or demand has been obtained; provided that the foregoing limitation will not be construed so as to limit or prevent a Controlling Class Certificateholder or the Directing Certificateholder, solely based on it being an Affiliate of the Special Servicer, from exercising any appointment, consent or consultation rights it may have under this Agreement solely in its capacity as Controlling Class Certificateholder or Directing Certificateholder (unless, for the avoidance of doubt, the Controlling Class Certificateholder or Directing Certificateholder is the Servicer, the Trustee, the Certificate Administrator, any Borrower Affiliate, any Restricted Party, the Manager or any of the subservicers or respective Affiliates or agents of the foregoing). Notwithstanding the foregoing, for purposes of obtaining the consent of Certificateholders to an amendment of this Agreement, any Certificate beneficially owned by the Trustee, the Certificate Administrator, the Servicer, the Special Servicer or any of their respective Affiliates shall be deemed to be outstanding; provided that such amendment does not relate to the termination of, increase in compensation of or material reduction in obligations of, the Trustee, the Certificate Administrator, the Servicer, the Special Servicer or any of their Affiliates (other than solely in its capacity as a Certificateholder) in any material respect, in which case such Certificate shall be deemed not to be outstanding. The Trustee, the Certificate Administrator and the Certificate Registrar may obtain and conclusively rely upon an Officer’s Certificate of the Depositor, the Servicer, the Special Servicer, the Certificate Administrator (in the case of the Trustee), the Trustee (in the case of the Certificate Administrator), the Borrowers, a Borrower Affiliate, the Manager, or any sub-servicer to determine whether a Certificate is beneficially owned by an Affiliate of any of them.

 

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“Certificateholder Quorum”: In connection with any solicitation of votes in connection with the replacement of the Special Servicer described in Section 7.1(f) (other than at the recommendation of the Operating Advisor), the Holders of Certificates evidencing at least 50% of the aggregate Voting Rights (taking into account the application of Realized Losses and the application of any Trust Appraisal Reduction Amounts to notionally reduce the Certificate Balances of the Certificates pursuant to the terms of this Agreement) of all Sequential Pay Certificates.

 

“Class”: With respect to the Certificates, all of the Certificates bearing the same alphabetical and numerical class designation, and each Uncertificated Lower-Tier Interest.

 

“Class A Certificate”: A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-1 hereto and designated as a Class A Certificate.

 

“Class A Pass-Through Rate”: As set forth in the Upper-Tier REMIC section of the Introductory Statement of this Agreement.

 

“Class B Certificate”: A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-3 hereto and designated as a Class B Certificate.

 

“Class B Pass-Through Rate”: As set forth in the Upper-Tier REMIC section of the Introductory Statement of this Agreement.

 

“Class C Certificate”: A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-4 hereto and designated as a Class C Certificate.

 

“Class C Pass-Through Rate”: As set forth in the Upper-Tier REMIC section of the Introductory Statement of this Agreement.

 

“Class D Certificate”: A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-5 hereto and designated as a Class D Certificate.

 

“Class D Pass-Through Rate”: As set forth in the Upper-Tier REMIC section of the Introductory Statement of this Agreement.

 

“Class HRR Certificate”: A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-6 hereto and designated as a Class HRR Certificate.

 

“Class HRR Pass-Through Rate”: As set forth in the Upper-Tier REMIC section of the Introductory Statement of this Agreement.

 

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“Class LA Uncertificated Interest”: A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LB Uncertificated Interest”: A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LC Uncertificated Interest”: A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LD Uncertificated Interest”: A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LE Uncertificated Interest”: A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LHRR Uncertificated Interest”: A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LT-R Interest”: The residual interest in the Lower-Tier REMIC. The Class LT-R Interest will be represented by the Class R Certificates.

 

“Class R Certificate”: A Certificate executed and authenticated by the Certificate Administrator, in substantially the form set forth in Exhibit A-7 hereto and designated as a Class R Certificate. The Class R Certificates have neither a Certificate Balance nor a Pass-Through Rate. The Class R Certificates will evidence the Class LT-R and Class UT-R Interests.

 

“Class UT-R Interest”: The residual interest in the Upper-Tier REMIC. The Class UT-R Interest will be represented by the Class R Certificates.

 

“Clearing Agency”: An organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act. The initial Clearing Agency shall be The Depository Trust Company.

 

“Clearstream”: As defined in Section 5.2(a).

 

“Closing Date”: June 29, 2018.

 

“Code”: The Internal Revenue Code of 1986, as amended, and as it may be further amended from time to time, any successor statutes thereto, and applicable U.S. Department of the Treasury regulations issued pursuant thereto in temporary or final form and

 

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any proposed regulations thereunder, to the extent that, by reason of their proposed effective date, such proposed regulations would apply to the Trust Fund.

 

“Co-Lender Agreement”: As defined in the Introductory Statement.

 

“Collateral”: The Property securing the Mortgage Loan, the Mortgage Loan Documents assigned with respect to the Mortgage Loan, the Reserve Accounts (and all sums held, deposited or invested therein and all proceeds thereof) with respect to the Mortgage Loan and all other collateral that is subject to security interests and liens granted to secure the Mortgage Loan under the terms of the Mortgage Loan Documents.

 

“Collection Account”: As defined in Section 3.4(a).

 

“Collection Period”: (i) With respect to the first Distribution Date following the Closing Date, the period commencing on and including the Closing Date and ending on and including the Determination Date relating to such Distribution Date, and (ii) with respect to any other Distribution Date, the period commencing on and including the date immediately following the Determination Date relating to the preceding Distribution Date and ending on and including the Determination Date relating to such Distribution Date.

 

“Commission”: The Securities and Exchange Commission.

 

“Companion Loan”: As defined in the Introductory Statement.

 

“Companion Loan A Notes”: The promissory notes designated as A-2-A-1, A-2-A-2, A-2-A-3, A-2-A-4, A-2-A-5, A-2-B-1, A-2-B-2, A-2-B-3, A-2-B-4, A-2-B-5, A-2-C-1, A-2-C-2, A-2-C-3, A-2-C-4, A-2-C-5, A-2-D-1, A-2-D-2, A-2-D-3, A-2-D-4 and A-2-D-5.

 

“Companion Loan Advance”: With respect to a Companion Loan that is part of an Other Securitization Trust, any advance of delinquent scheduled payments with respect to such Companion Loan made by the master servicer or trustee with respect to such Other Securitization Trust.

 

“Companion Loan Distribution Account”: As defined in Section 3.4(a).

 

“Companion Loan Holder”: The holder of a Companion Loan.

 

“Companion Loan Notes”: As defined in the Introductory Statement.

 

“Companion Loan Rating Agency”: With respect to a Companion Loan or any portion thereof, any rating agency that was engaged by a participant in the securitization of such Companion Loan or such portion to assign a rating to the related Companion Loan Securities.

 

“Companion Loan Rating Agency Confirmation”: With respect to any matter involving the servicing and administration of a Companion Loan as to which any Companion Loan Securities exist, confirmation in writing (which may be in electronic form) by each applicable Companion Loan Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the

 

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then current rating assigned to any class of such Companion Loan Securities (if then rated by such Companion Loan Rating Agency); provided that upon receipt of a written waiver or other acknowledgment from a Companion Loan Rating Agency indicating its decision not to review or declining to review the matter for which the Companion Loan Rating Agency Confirmation is sought (such written notice, a “Companion Loan Rating Agency Declination”), or as otherwise provided in Section 3.28(b) of this Agreement, the requirement for the Companion Loan Rating Agency Confirmation from the applicable Companion Loan Rating Agency with respect to such matter shall not apply. With respect to any matter affecting any Companion Loan, so long as such Companion Loan (or any portion thereof) is subject to a securitization transaction, any Rating Agency Confirmation will also refer to confirmation in writing (which may be in electronic format) by each applicable rating agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then current rating assigned to any class of securities backed by such Companion Loan or any portion thereof (if then rated by such rating agency); provided that a written waiver (which may be in electronic format) or other acknowledgment from such rating agency indicating its decision not to review or to decline to review the matter for which the Rating Agency Confirmation is sought will be deemed to satisfy the requirement for the Rating Agency Confirmation from the rating agency with respect to such matter.

 

“Companion Loan Securities”: Any commercial mortgage-backed securities that evidence an interest in or are secured by the assets of an Other Securitization Trust, which assets include a Companion Loan (or a portion thereof).

 

“Condemnation Proceeds”: The portion of the Net Proceeds relating to a Condemnation (as defined in the Mortgage Loan Agreement).

 

“Confidential Information”: With respect to the Servicer or the Special Servicer, as applicable, all material non-public information obtained in the course of and as a result of such Person’s performance of its duties as Servicer or Special Servicer, as applicable, with respect to the Mortgage Loan, the Borrower Affiliates and the Property, unless such information (i) was already in the possession of such Person prior to being disclosed to such Person, (ii) is or becomes available to such Person from a source other than its activities as Servicer or Special Servicer, as applicable, (iii) is or becomes generally available to the public other than as a result of a disclosure by the Servicer Servicing Personnel or Special Servicer Servicing Personnel or (iv) is required to be disclosed by a court or administrative order or lawful discovery demand, provided such Person shall use reasonable efforts to obtain confidential treatment thereof. Notwithstanding the foregoing, the Trustee and the Certificate Administrator shall be permitted to comply with their respective obligations hereunder to make information available to the extent that such information was received by it in its capacity as Trustee or Certificate Administrator, as applicable.

 

“Consultation Termination Event”: The date on which the Class HRR Certificates no longer have a then-outstanding Certificate Balance at least equal to 25% of the initial Certificate Balance of such Class, without regard to the application of any Trust Appraisal Reduction Amounts.

 

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“Control Affiliate”: As to any particular Person, any Person, directly or indirectly through one or more intermediaries, Controlling, Controlled by or under common Control with, such Person in question. As used solely in this definition of “Control Affiliate”, “Control” means (a) the ownership, directly or indirectly, in the aggregate of 20% or more of the beneficial ownership interests of an entity, or (b) the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise. “Controlled by,” “Controlling” and “under common Control with” have the respective correlative meanings to such terms. The Trustee and/or the Certificate Administrator may obtain and rely upon a certification of the Borrower, the Borrower Sponsors or any Guarantor (or any replacement guarantor), as applicable, to determine whether any Person is a Control Affiliate.

 

“Control Event”: With respect to any date of determination, if the Certificate Balance of the Class HRR Certificates on such date (taking into account the application of any Trust Appraisal Reduction Amounts to notionally reduce the Certificate Balance of such Class) is less than 25% of the initial Certificate Balance of such Class. If a Control Event no longer exists, then the Directing Certificateholder shall regain all the consent and direction rights of the Directing Certificateholder and the Controlling Class shall regain the right to appoint a Directing Certificateholder.

 

“Controlling Class”: The Class HRR Certificates. No other Class of Certificates will be eligible to act as a Controlling Class or appoint a Directing Certificateholder. If a Consultation Termination Event has occurred, there shall be no Controlling Class and no Directing Certificateholder.

 

“Controlling Class Certificateholder”: Each Holder (or Beneficial Owner, if applicable) of a Certificate of the Controlling Class as determined by the Certificate Registrar, from time to time, upon request by any party hereto. The Trustee, the Servicer, the Special Servicer or the Operating Advisor may from time to time request (the cost of which being an expense of the Trust) that the Certificate Administrator provide a list of the Holders (or Beneficial Owners, if applicable) of the Controlling Class and the Certificate Administrator shall promptly provide such list without charge to such Trustee, Servicer, Special Servicer or Operating Advisor, as applicable. The Trustee, the Servicer, the Special Servicer and the Operating Advisor shall be entitled to rely on any such list so provided. Notwithstanding the foregoing, for purposes of determining the Directing Certificateholder, exercising any rights of the Controlling Class or the Directing Certificateholder or receiving Asset Status Reports or any other information under this Agreement other than Distribution Date Statements, any holder of any interest in a Controlling Class Certificate who is a Borrower Affiliate, the Manager or an agent or Affiliate of the foregoing, or is a Restricted Party, will not be deemed to be a Holder of the related Controlling Class and will not be entitled to exercise such rights or receive such information, and any Directing Certificateholder previously appointed or selected by such holder will thereafter not be entitled to exercise any rights of the Directing Certificateholder. If, as a result of the preceding sentence, no Holder of Controlling Class Certificates would be eligible to exercise such rights, there will be no Directing Certificateholder or Controlling Class.

 

“Controlling Persons”: As defined in Section 6.3(a).

 

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“Corporate Trust Office”: The principal corporate trust office of the Trustee or the Certificate Administrator, as applicable, at which at any particular time its corporate trust business shall be administered, which office at the date of the execution of this Agreement is located (i) to the Certificate Administrator with respect to Certificate transfers and surrenders, at 600 South 4th Street, 7th Floor MAC N9300-070, Minneapolis, Minnesota 55479, Attention: CTS : Certificate Transfers (CMBS) JPMCC 2018-AVM; (ii) with respect to the Trustee at 1100 North Market Street, Wilmington, Delaware 19890, Attention: CMBS Trustee JPMCC 2018-AVM; and (iii) to the Certificate Administrator for all other purposes, at 9062 Old Annapolis Road, Columbia, Maryland 21045, Attention: Corporate Trust Services (CMBS), 2018-AVM, telecopy number (410) 715-2380, or the principal corporate trust office of any successor Trustee or Certificate Administrator, as applicable, qualified and appointed pursuant to Section 8.8.

 

“Credit Risk Retention Compliance Agreement”: As defined in Section 3.31(a).

 

“Credit Risk Retention Rules”: The Credit Risk Retention regulations, 79 Fed. Reg. 77601, pages 77740-77766 (Dec. 24, 2014), jointly promulgated by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the Securities and Exchange Commission, and the Department of Housing and Urban Development (the “Agencies”) (which such joint final rule has been codified, inter alia, at 17 C.F.R. § 246) to implement the credit risk retention requirements under Section 15G of the Securities Exchange Act of 1934 (as added by Section 941 of the Dodd-Frank Wall Street Reform and Consumer Protection Act), as such regulations may be amended from time to time by such Agencies, and subject to such clarification and interpretation as have been provided by such Agencies, whether in the adopting release, or as may be provided by any such Agency or its staff from time to time, in each case, as effective from time to time as of the applicable compliance date specified therein.

 

“CREFC®”: The Commercial Real Estate Finance Council®, or any association or organization that is a successor thereto. If neither such association nor any successor remains in existence, “CREFC®” shall be deemed to refer to such other association or organization as may exist whose principal membership consists of servicers, trustees, issuers, placement agents and underwriters generally involved in the commercial mortgage loan securitization industry, which is the principal such association or organization in the commercial mortgage loan securitization industry and one of whose principal purposes is the establishment of industry standards for reporting transaction-specific information relating to commercial mortgage pass-through certificates and commercial mortgage-backed bonds and the commercial mortgage loans and foreclosed properties underlying or backing them to investors holding or owning such certificates or bonds, and any successor to such other association or organization. If an organization or association described in one of the preceding sentences of this definition does not exist, “CREFC®” shall be deemed to refer to such other association or organization as shall be reasonably acceptable to the Servicer, the Special Servicer, the Certificate Administrator, and the Trustee.

 

“CREFC® Advance Recovery Report”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Advance Recovery Report” available as of the Closing Date on the CREFC® Website, or such other form

 

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for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Advance Recovery Report” available as of the Closing Date on the CREFC® Website, is reasonably acceptable to the Servicer.

 

“CREFC® Appraisal Reduction Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Appraisal Reduction Template” available and effective from time to time on the CREFC® Website.

 

“CREFC® Bond Level File”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Bond Level File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Certificate Administrator.

 

“CREFC® Collateral Summary File”: The report substantially in the form of, and containing the information called for in, the downloadable form of the “Collateral Summary File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Certificate Administrator.

 

“CREFC® Comparative Financial Status Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Comparative Financial Status Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

 

“CREFC® Delinquent Loan Status Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Delinquent Loan Status Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

 

“CREFC® Financial File”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Financial File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer.

 

“CREFC® Historical Bond/Collateral Realized Loss Reconciliation Template”: A report substantially in the form of, and containing the information called for in, the downloadable

 

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form of the “Historical Bond/Collateral Realized Loss Reconciliation Template” available and effective from time to time on the CREFC® Website.

 

“CREFC® Historical Liquidation Loss Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Liquidation Loss Template” available and effective from time to time on the CREFC® Website.

 

“CREFC® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Loan Modification Forbearance and Corrected Mortgage Loan Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

 

“CREFC® Intellectual Property Royalty License Fee”: A fee, payable on a monthly basis, computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the Trust Loan is computed at the CREFC® Intellectual Property Royalty License Fee Rate (prorated for partial periods).

 

“CREFC® Intellectual Property Royalty License Fee Rate”: With respect to the Trust Loan, a rate equal to 0.00050% per annum.

 

“CREFC® Interest Shortfall Reconciliation Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Interest Shortfall Reconciliation Template” available and effective from time to time on the CREFC® Website.

 

“CREFC® License Agreement”: The License Agreement, in the form set forth on the website of CREFC® on the Closing Date, relating to the use of the CREFC® trademarks and trade names.

 

“CREFC® Loan Level Reserve/LOC Report”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Level Reserve LOC Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer.

 

“CREFC® Loan Liquidation Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Liquidation Report” available as of the Closing Date on the CREFC® Website, or in such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

 

“CREFC® Loan Modification Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Modification

 

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Report” available and effective from time to time on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

 

“CREFC® Loan Periodic Update File”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Periodic Update File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer, the Special Servicer and the Certificate Administrator.

 

“CREFC® Loan Setup File”: The report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Setup File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer, the Special Servicer and the Certificate Administrator.

 

“CREFC® NOI Adjustment Worksheet”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “NOI Adjustment Worksheet” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is acceptable to the Servicer or the Special Servicer, as applicable, and in any event, shall present the computations made in accordance with the methodology described in such form to “normalize” the full year and year-to-date net operating income and debt service coverage numbers used in the other reports required by this Agreement.

 

“CREFC® Operating Statement Analysis Report”: A report prepared with respect to the Property substantially in the form of, and containing the information called for in, the downloadable form of the “Operating Statement Analysis Report” available as of the Closing Date on the CREFC® Website or in such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer.

 

“CREFC® Property File”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Property File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

 

“CREFC® Reconciliation of Funds Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Reconciliation of

 

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Funds Template” available and effective from time to time on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally.

 

“CREFC® REO Liquidation Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “REO Liquidation Report” available as of the Closing Date on the CREFC® Website, or in such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

 

“CREFC® REO Status Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “REO Status Report” available as of the Closing Date on the CREFC® Website, or in such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer.

 

“CREFC® Reports”: Collectively refers to the following reports as such may be amended, updated or supplemented from time to time as part of the CREFC® “IRP” (Investor Reporting Package), and any additional reports that become part of the CREFC® IRP from time to time (if agreed to by the parties hereto):

 

(i)       the following seven electronic files: (i) CREFC® Bond Level File, (ii) CREFC® Collateral Summary File, (iii) CREFC® Property File, (iv) CREFC® Loan Periodic Update File, (v) CREFC® Loan Setup File, (vi) CREFC® Financial File, and (vii) CREFC® Special Servicer Loan File; and

 

(ii)       the following nineteen supplemental reports and templates: (i) CREFC® Comparative Financial Status Report, (ii) CREFC® Delinquent Loan Status Report, (iii) CREFC® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report, (iv) CREFC® Operating Statement Analysis Report, (v) CREFC® NOI Adjustment Worksheet, (vi) CREFC® REO Status Report, (vii) CREFC® Servicer Watch List, (viii) CREFC® Loan Level Reserve/LOC Report, (ix) CREFC® Advance Recovery Report, (x) CREFC® Total Loan Report, (xi) CREFC® Appraisal Reduction Template, (xii) CREFC® Servicer Realized Loss Template, (xiii) CREFC® Reconciliation of Funds Template, (xiv) CREFC® Historical Bond/Collateral Realized Loss Reconciliation Template, (xv) CREFC® Historical Liquidation Loss Template, (xvi) CREFC® Interest Shortfall Reconciliation Template, (xvii) CREFC® Loan Liquidation Report, (xviii) CREFC® REO Liquidation Report and (xix) CREFC® Loan Modification Report, as such reports may be amended, updated or supplemented from time to time.

 

“CREFC® Servicer Realized Loss Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Realized Loss Template” available and effective from time to time on the CREFC® Website.

 

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“CREFC® Servicer Watch List”: For any Determination Date, a report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Watch List” available as of the Closing Date on the CREFC® Website, or in such other final form for the presentation of such information and containing such additional information as may from time to time be promulgated as recommended by the CREFC® for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Servicer Watch List” available as of the Closing Date on the CREFC® Website, is reasonably acceptable to the Servicer.

 

“CREFC® Special Servicer Loan File”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Special Servicer Loan File” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

 

“CREFC® Total Loan Report”: A monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Total Loan Report” available as of the Closing Date on the CREFC® Website, or in such other form for the presentation of such information and containing such additional information as may from time to time be adopted by the CREFC® for commercial mortgage-backed securities transactions and is reasonably acceptable to the Servicer.

 

“CREFC® Website”: CREFC®’s Internet website located at “www.crefc.org” or such other primary Internet website as the CREFC® may establish for dissemination of its report forms.

 

“Current Interest Distribution Amount”: With respect to any Distribution Date for (x) any Regular Certificate, interest accruing during the related applicable Certificate Interest Accrual Period at the applicable Pass-Through Rate for such Certificate Interest Accrual Period on the outstanding Certificate Balance of such Certificate as of the prior Distribution Date (after giving effect to distributions of principal and allocations of Realized Losses on such prior Distribution Date), and (y) any Uncertificated Lower-Tier Interest, interest accruing during the applicable Certificate Interest Accrual Period at the applicable Pass-Through Rate for such Certificate Interest Accrual Period on the then outstanding Lower-Tier Principal Amount of such Class as of the prior Distribution Date (after giving effect to distributions of principal and allocations of Realized Losses on such prior Distribution Date).

 

“Custodian”: The Certificate Administrator, in its capacity as the Custodian, performing its role through the document custody division of the Certificate Administrator.

 

“Cut-off Date”: June 7, 2018.

 

“Default Interest”: With respect to any Payment Date, upon the occurrence and during the continuance of a Mortgage Loan Event of Default, interest accrued on the Trust Loan or Mortgage Loan, as applicable, at the excess of the Default Rate over the applicable Note Rate during the related Mortgage Loan Interest Accrual Period on the outstanding principal balance of

 

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such Note and, to the extent permitted by law, all accrued and unpaid interest on the Trust Loan or Mortgage Loan, as applicable, any other amounts then due and payable pursuant to the Mortgage Loan Documents, calculated from the date such payment was due without regard to any grace or cure periods.

 

“Default Rate”: As defined in the Mortgage Loan Agreement.

 

“Defect”: As defined in the Trust Loan Purchase Agreement.

 

“Deficient Exchange Act Deliverable”: With respect to the Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and each Servicing Function Participant and Additional Servicer retained by it (other than a Sub-Servicer set forth on Exhibit V), any item (x) regarding such party, (y) prepared by such party or any registered public accounting firm, attorney or other agent retained by such party to prepare such information and (z) delivered by or on behalf of such party pursuant to the delivery requirements under Article 13 of this Agreement that does not conform to the applicable reporting requirements under the Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder.

 

“Definitive Certificate”: Any Certificate in fully registered certificated form without interest coupons.

 

“Delivery Date”: As defined in Section 2.1(b).

 

“Depositor”: J.P. Morgan Chase Commercial Mortgage Securities Corp., a Delaware corporation, and its successors-in-interest.

 

“Depository”: The Depository Trust Company or a successor appointed by the Certificate Registrar (which appointment shall be at the direction of the Depositor if the Depositor is legally able to do so).

 

“Depository Participant”: A Person for whom, from time to time, the Depository effects book-entry transfers and pledges of securities deposited with the Depository.

 

“Determination Date”: With respect to each Distribution Date, the first (1st) day of the calendar month in which such Distribution Date occurs or, if such first (1st) day is not a Business Day, the immediately succeeding Business Day.

 

“Deutsche Bank”: As defined in the Introductory Statement.

 

“Directing Certificateholder”: The initial Directing Certificateholder shall be BREDS HG SD (Delaware) L.P., a Delaware limited partnership. Thereafter, the Directing Certificateholder shall be the Controlling Class Certificateholder (or its representative) as identified to the Certificate Administrator selected by the Majority Controlling Class Certificateholders, as determined by the Certificate Registrar from time to time. No Borrower Affiliate may be appointed as or act as a Directing Certificateholder.

 

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“Directing Certificateholder Asset Status Report Approval Process” As defined in Section 3.10(i).

  

“Directly Operate”: With respect to any Foreclosed Property, the furnishing or rendering of services to the tenants thereof, that are not customarily provided to tenants in connection with the rental of space “for occupancy only” within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or operation of such Foreclosed Property, the holding of such Foreclosed Property primarily for sale to customers, the use of such Foreclosed Property in a trade or business conducted by the Trust Fund or the performance of any construction work on the Foreclosed Property, other than through an Independent Contractor; provided, however, that a Foreclosed Property shall not be considered to be Directly Operated solely because the Trustee (or the Special Servicer on behalf of the Trustee) establishes rental terms, chooses tenants, enters into or renews leases, deals with taxes and insurance or makes decisions as to repairs or capital expenditures with respect to such Foreclosed Property or takes other actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).

 

“Disclosable Special Servicer Fees”: With respect to the Mortgage Loan or any Foreclosed Property, any compensation and other remuneration (including, without limitation, in the form of commissions, brokerage fees, or rebates, or as a result of any other fee-sharing arrangement) received or retained by the Special Servicer or any of its Affiliates that is paid by any Person (including, without limitation, the Trust, any Loan Party, the Manager, any guarantor, any indemnitor or any other Borrower Affiliate in respect of the Mortgage Loan or any of their Affiliates and any purchaser of the Mortgage Loan, the Companion Loan or Foreclosed Property) in connection with the disposition, workout or foreclosure of the Mortgage Loan, the management or disposition of any Foreclosed Property, and the performance by the Special Servicer or any such Affiliate of any other special servicing duties under this Agreement, other than (1) any Permitted Special Servicer/Affiliate Fees and (2) any compensation to which the Special Servicer is entitled pursuant to Section 3.17 of this Agreement; provided, that any compensation and other remuneration that the Servicer or Certificate Administrator is permitted to receive or retain pursuant to this Agreement in connection with its duties in such capacity will not be Disclosable Special Servicer Fees.

 

“Disclosure Parties”: As defined in Section 8.14(c).

 

“Disqualified Non-U.S. Person”: With respect to a Class R Certificate, any Non-U.S. Person or agent thereof other than (i) a Non-U.S. Person that holds such Class R Certificate in connection with the conduct of a trade or business within the United States and has furnished the transferor and the Certificate Administrator with an effective IRS Form W-8ECI or other prescribed form or (ii) a Non-U.S. Person that has delivered to both the transferor and the Certificate Administrator an Opinion of Counsel of a nationally recognized tax counsel to the effect that the transfer of such Class R Certificate to it is in accordance with the requirements of the Code and the regulations promulgated thereunder and that such transfer of such Class R Certificate will not be disregarded for federal income tax purposes under Treasury Regulations Section 1.860G-3.

 

“Disqualified Organization”: Either (a) the United States, a State, or any agency or instrumentality of any of the foregoing (other than an instrumentality that is a corporation if

 

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all of its activities are subject to tax and, except for the FHLMC, a majority of its board of directors is not selected by any such governmental unit), (b) a foreign government, International Organization or agency or instrumentality of either of the foregoing, (c) an organization that is exempt from tax imposed by chapter 1 of the Code (including the tax imposed by Code Section 511 on unrelated business taxable income) on any excess inclusions (as defined in Section 860E(c)(1)) of the Code with respect to the Class R Certificates (except certain farmers’ cooperatives described in Section 521 of the Code), (d) rural electric and telephone cooperatives described in Section 1381(a)(2) of the Code or (e) any other Person so designated by the Certificate Administrator based upon an Opinion of Counsel to the effect that any transfer of a Class R Certificate to such Person may cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding. The terms “United States,” “State” and “International Organization” have the meanings set forth in Section 7701 of the Code or successor provisions.

 

“Distribution Account”: The account established and maintained by the Certificate Administrator pursuant to Section 3.5(a).

 

“Distribution Date”: The fourth Business Day after the Determination Date, beginning in July 2018. The first Distribution Date is expected to be July 9, 2018.

 

“Distribution Date Statement”: As defined in Section 4.4(a).

 

“Due Diligence Service Provider”: As defined in Section 8.15(b).

 

“Eligible Account”: A separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state-chartered depository institution or trust company which complies with the definition of Eligible Institution, (b) a segregated trust account or accounts maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity, the long-term unsecured debt obligations of which are rated at least “A2” by Moody’s, which, in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or state authority, as applicable, or (c) such other account or accounts not listed in clauses (a) or (b) above with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument. If the holding institution for an account ceases to meet the requirements of this definition for an “Eligible Account”, then the party responsible for administering such account hereunder shall move such account to a holding institution meeting such requirements within 30 days.

 

“Eligible Institution”: (a) Wells Fargo Bank provided that the long-term unsecured debt obligations of Wells Fargo Bank are rated at least “A2” by Moody’s (or such other rating confirmed in a Rating Agency Confirmation), and the short-term unsecured debt obligations of Wells Fargo Bank are rated at least “P-1” by Moody’s (or such other rating confirmed in a Rating Agency Confirmation), (b) a depository institution or trust company insured by the Federal Deposit Insurance Corporation, the short term unsecured debt obligations

 

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or commercial paper of which are rated at least “P-1” by Moody’s (or such other rating confirmed in a Rating Agency Confirmation) and in the case of letters of credit or accounts in which funds are held for thirty (30) days or less (or, in the case of accounts in which funds are held for more than thirty (30) days, the long-term unsecured debt obligations of which are rated at least “A2” by Moody’s (or such other rating confirmed in a Rating Agency Confirmation) in the case of letters of credit or accounts in which funds are held for more than thirty (30) days, or (c) an account maintained with any other insured depository institution that is the subject of a Rating Agency Confirmation, from the Rating Agency for which the minimum rating is not met, with respect to any account listed in the clauses above, or from each Rating Agency, with respect to any account other than one listed in the clauses above.

 

“Eligible Operating Advisor”: An institution (a) that is a special servicer or operating advisor on a commercial mortgage-backed securities transaction rated by the Rating Agencies (including, in the case of the Operating Advisor, this transaction) but has not been special servicer or operating advisor on a transaction for which any Rating Agency has qualified, downgraded or withdrawn its rating or ratings of, one or more classes of certificates for such transaction citing servicing concerns with the special servicer or operating advisor, as applicable, as the sole or a material factor in such rating action; (b) that can and will make the representations and warranties of the Operating Advisor set forth in Section 2.8, including to the effect that it possesses sufficient financial strength to fulfill its duties and responsibilities pursuant to this Agreement over the life of the Trust; (c) that is not (and is not Risk Retention Affiliated with) the Depositor, the Trustee, the Certificate Administrator, the Servicer, the Special Servicer, the Borrower Sponsors, any Borrower Affiliate, the Third Party Purchaser, the Directing Certificateholder, or any of their respective Risk Retention Affiliates; (d) that has not been paid by the Special Servicer or successor special servicer any fees, compensation or other remuneration (x) in respect of its obligations hereunder or (y) for the appointment or recommendation for replacement of a successor special servicer to become a special servicer under this Agreement; (e) that (x) has been regularly engaged in the business of analyzing and advising clients in commercial mortgage-backed securities matters and have at least five (5) years of experience in collateral analysis and loss projections and (y) has at least five (5) years of experience in commercial real estate asset management and experience in the workout and management of distressed commercial real estate assets; and (f) that does not directly or indirectly, through one or more Affiliates or otherwise, own or have derivative exposure in any interest in any Certificates, the Mortgage Loan or otherwise have any financial interest in the securitization transaction to which this Agreement relates, other than in fees from its role as Operating Advisor.

 

“Environmental Indemnity”: As defined in the Mortgage Loan Agreement.

 

“ERISA”: The Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder.

 

“Euroclear”: As defined in Section 5.2(a).

 

“Exchange Act”: The Securities Exchange Act of 1934, as amended from time to time.

 

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“FHLMC”: The Federal Home Loan Mortgage Corporation and its successors-in-interest.

 

“Final Asset Status Report”: With respect to the Specially Serviced Mortgage Loan, the initial completed Asset Status Report (together with such other data or supporting information provided by the Special Servicer to the Directing Certificateholder that does not include any communication (other than the related Asset Status Report) between the Special Servicer and the Directing Certificateholder with respect to such Specially Serviced Mortgage Loan) required to be delivered by the Special Servicer by the Initial Delivery Date or any Subsequent Asset Status Report, in each case, in the form fully approved or deemed approved, if applicable, by the Directing Certificateholder pursuant to the Directing Certificateholder Approval Process following completion of the ASR Consultation Process. For the avoidance of doubt, the Special Servicer may issue more than one Final Asset Status Report with respect to the Specially Serviced Mortgage Loan in accordance with the procedures described in Section 3.10(i). Each Final Asset Status Report will be labeled or otherwise identified or communicated as being final.

 

“FNMA”: The Federal National Mortgage Association and its successors-in-interest.

 

“Fitch”: Fitch Ratings, Inc., and its successors in interest.

 

“Foreclosed Companion Loan”: Each Companion Loan while the Property is a Foreclosed Property.

 

“Foreclosed Property”: The Property or other Collateral securing the Mortgage Loan, title to which has been acquired on behalf of or in the name of the Trustee on behalf of the Trust and Companion Loan Holders through foreclosure, deed-in-lieu of foreclosure or otherwise.

 

“Foreclosed Property Account”: The account or accounts established and maintained by the Special Servicer pursuant to Sections 3.6 and 3.14.

 

“Foreclosure Proceeds”: Proceeds, net of any related expenses of the Servicer, Special Servicer, the Certificate Administrator and/or the Trustee, received in respect of any Foreclosed Property (including, without limitation, proceeds from the operation or rental of such Foreclosed Property) prior to the final liquidation of the Foreclosed Property.

 

“Form 8-K Disclosure”: The information described in the Form 8-K items set forth under the “Item on Form 8-K” column on Exhibit R hereto.

 

“Global Certificate”: As defined in Section 5.2(b).

 

“Guarantor”: As defined in the Mortgage Loan Agreement.

 

“Guaranty”: As defined in the Mortgage Loan Agreement.

 

“Impermissible Operating Advisor Affiliate” : As defined in Section 2.12.

 

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“Impermissible Risk Retention Affiliate”: As defined in Section 2.12.

 

“Impermissible TPP Affiliate”: As defined in Section 2.12.

 

“Independent”: When used with respect to any specified Person, such a Person who (i) does not have any direct financial interest or any material indirect financial interest in the Depositor, the Borrower Affiliates, any Companion Loan Holder, the Trustee, the Certificate Administrator, the Operating Advisor, the Servicer or the Special Servicer or in any of their respective Affiliates and (ii) is not connected with the Depositor, the Borrower Affiliates, any Companion Loan Holder, the Trustee, the Certificate Administrator, the Operating Advisor, the Servicer or the Special Servicer or any of their respective Affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.

 

“Independent Appraiser”: An Independent professional real estate appraiser who (i) is a member in good standing of the Appraisal Institute, (ii) if the state in which the Property or Foreclosed Property is located certifies or licenses appraisers, is certified or licensed in such state, and (iii) has a minimum of five (5) years’ experience in the appraisal of comparable properties in the geographic area in which the Property is located.

 

“Independent Contractor”: Either (i) any Person (other than the Special Servicer or Servicer) that would be an “independent contractor” with respect to the Lower-Tier REMIC or the Upper-Tier REMIC within the meaning of Section 856(d)(3) of the Code if such Trust REMIC were a real estate investment trust (except that the ownership test set forth in that Section of the Code shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of any Class of Certificates or 35% or more of the aggregate value of all Classes of Certificates or such other interest in the Certificates as is set forth in an Opinion of Counsel, which shall, at no expense to the Trustee, the Certificate Administrator, the Special Servicer, the Servicer, the Operating Advisor or the Trust Fund, be delivered to the Trustee, the Certificate Administrator, the Special Servicer, the Servicer or the Operating Advisor on behalf of the Trustee); provided that neither the Lower-Tier REMIC nor the Upper-Tier REMIC receives or derives any income from such Person and the relationship between such Person and such Trust REMIC is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5), or (ii) any other Person (including the Special Servicer or the Servicer) if the Trustee, the Certificate Administrator and the Operating Advisor (or the Servicer or the Special Servicer on behalf of the Trustee) has received an Opinion of Counsel which shall, at no expense to the Trustee, the Certificate Administrator, the Special Servicer, the Servicer (unless the Special Servicer or the Servicer is providing the Opinion of Counsel with respect to itself), the Operating Advisor or the Trust Fund, be to the effect that the taking of any action in respect of any Foreclosed Property by such Person, subject to any conditions therein specified, that is otherwise herein contemplated to be taken by an Independent Contractor will not cause such Foreclosed Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (determined without regard to the exception applicable for purposes of Section 860D(a) of the Code), or cause any income realized in respect of such Foreclosed Property to fail to qualify as Rents from Real Property.

 

“Initial Delivery Date”: As defined in Section 3.10(i).

 

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“Initial Purchasers”: J.P. Morgan Securities LLC, Deutsche Bank Securities Inc., Morgan Stanley & Co. and Wells Fargo Securities LLC.

 

“Inquiries”: As defined in Section 4.5(a)(i).

 

“Institutional Accredited Investor”: An institution, that is not a QIB, that is an “accredited investor” within the meaning of Rule 501(a) (1), (2), (3) or (7) of Regulation D under the Act, or any entity all of the equity owners of which are such institutions.

 

“Insurance Proceeds”: (a) The portion of Net Proceeds paid as a result of a Casualty (as defined in the Mortgage Loan Agreement) other than amounts to be applied to the restoration, preservation or repair of the Property or to be released to the Loan Parties each in accordance with the terms of the Mortgage Loan Agreement, or if not required to be so applied or so released under the terms of the Mortgage Loan Agreement, other than amounts applied to the restoration, preservation or repair of the Property in accordance with Accepted Servicing Practices, (b) amounts paid by any insurer pursuant to any insurance policy required to be maintained by the Servicer pursuant to Section 3.11, to the extent related to this Agreement only or (c) any other amounts paid by an insurer pursuant to any insurance policy required to be maintained by the Loan Parties, to the extent allocable to the Mortgage Loan under the Mortgage Loan Documents.

 

“Interest Deposit Amount”: $2,575,781.25, which represents 30 days of interest that would have accrued on the Trust Loan and shall be remitted by the Depositor to the Servicer on the Closing Date for deposit in the Collection Account.

 

“Interest Distribution Amount”: With respect to any Distribution Date for any Class of Regular Certificates or Uncertificated Lower-Tier Interests, the sum of the Current Interest Distribution Amount for such Distribution Date and such Class of Certificates or Uncertificated Lower-Tier Interests plus the aggregate unpaid Interest Shortfalls in respect of prior Distribution Dates for such Class of Certificates or Uncertificated Lower-Tier Interests.

 

“Interest Reserve Account”: As defined in Section 3.4(f).

 

“Interest Shortfall”: With respect to any Distribution Date for any Class of Regular Certificates or Uncertificated Lower-Tier Interests, the amount by which the Current Interest Distribution Amount for such Class of Certificates and Distribution Date exceeds the portion actually paid in respect of such Class on such Distribution Date.

 

“Interested Person”: As defined in Section 3.16(a)(ii).

 

“Investment”: Any direct or indirect ownership interest in any security, note or other financial instrument issued or executed by a Loan Party, or any Affiliate of any of the Loan Parties, a loan directly or indirectly secured by any of the foregoing or a hedging transaction (however structured) that references or relates to any of the foregoing.

 

“Investment Account”: As defined in Section 3.8(a).

 

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“Investment Representation Letter”: A letter substantially in the form attached hereto as Exhibit P.

 

“Investment Decisions”: Investment, trading, lending or other financial decisions, strategies or recommendations with respect to Investments, whether on behalf of the Servicer or any Affiliate thereof, the Special Servicer or any Affiliate thereof, the Certificate Administrator or any Affiliate thereof, as applicable, or any Person on whose behalf the Servicer or any Affiliate thereof or the Special Servicer or any Affiliate thereof has discretion in connection with Investments.

 

“Investor Certification”: A certification representing that such Person executing the certificate is a Certificateholder, a Beneficial Owner of a Certificate, a Companion Loan Holder, a prospective purchaser of a Certificate, any Trust Loan Seller if it has repurchased a portion of the Trust Loan in accordance with this Agreement and the Trust Loan Purchase Agreement or the Directing Certificateholder (to the extent such Person is not a Certificateholder) and that either (a) such Person is not a Borrower Affiliate, a Manager, or an agent or Affiliate of any of the foregoing, in which case such Person shall have access to all the reports and information made available to Privileged Persons hereunder, or (b) such Person is a Borrower Affiliate or the Manager, or an agent or Affiliate of the foregoing, in which case such Person shall be permitted to receive access to the Distribution Date Statements prepared by the Certificate Administrator. The Investor Certification shall be substantially in the form of Exhibit K-1 or Exhibit K-2 hereto, as applicable, or may be in the form of an electronic certification contained on the Certificate Administrator’s Website containing the same information as Exhibit K-1 or Exhibit K-2, as applicable. Investor Certifications may be submitted electronically via the Certificate Administrator’s Website. The Certificate Administrator and Trustee may conclusively rely on the Investor certificates and may require that Investor Certifications be resubmitted from time to time in accordance with its policies and procedures.

 

“Investor Q&A Forum”: As defined in Section 4.5(a).

 

“Investor Registry”: As defined in Section 4.5(b).

 

“IRS”: The Internal Revenue Service.

 

“JPMCB”: As defined in the Introductory Statement.

 

“JPMS”: J.P. Morgan Securities LLC, a Delaware limited liability company, and its successors-in-interest.

 

“KBRA”: Kroll Bond Rating Agency, Inc., and its successors-in-interest.

 

“Lease”: With respect to the Property, the “Lease” as defined in the Mortgage Loan Agreement.

 

“Lender”: As defined in the Mortgage Loan Agreement.

 

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“Liquidated Property”: The Property, if it has been liquidated and the Special Servicer has determined that all amounts which it expects to recover from or on account of such Property have been recovered.

 

“Liquidation Expenses”: Reasonable and customary expenses (other than expenses covered by any insurance policy) incurred by the Servicer, the Special Servicer, the Certificate Administrator or the Trustee in connection with the liquidation of the Mortgage Loan or the Property (including for the avoidance of doubt, reasonable and customary expenses incurred by the Servicer, the Special Servicer, the Certificate Administrator or the Trustee in connection with the sale of the Mortgage Loan), such expenses including, without limitation, legal fees and expenses, appraisal fees, brokerage fees and commissions, conveyance taxes and trustee and co-trustee fees, if any. Liquidation Expenses shall not include any previously incurred expenses which have been previously reimbursed to the party incurring the same or which were netted against income from any Foreclosed Property and were considered in the calculation of the amount of Foreclosure Proceeds pursuant to the definition thereof.

 

“Liquidation Fee”: A fee payable to the Special Servicer with respect to the Liquidated Property or the liquidation of the Specially Serviced Mortgage Loan, whether through judicial foreclosure, sale or otherwise, or in connection with the sale, discounted payoff or other liquidation of the Specially Serviced Mortgage Loan or the Property, as to which the Special Servicer receives any Liquidation Proceeds, equal to the product of the Liquidation Fee Rate and the related Net Liquidation Proceeds; provided that any such Liquidation Fee shall be reduced by any Net Modification Fees paid by the Borrower with respect to the Specially Serviced Mortgage Loan or the Property that were received and retained by the Special Servicer, but only to the extent those Net Modification Fees have not previously been deducted from a Work-out Fee or Liquidation Fee; and provided, further, that the Special Servicer shall not be entitled to receive a Liquidation Fee in connection with (i) the repurchase of all or any allocable portion of the Trust Loan by the Trust Loan Sellers (or the applicable Trust Loan Seller) pursuant to the Trust Loan Purchase Agreement (so long as such repurchase occurs within the ninety (90) day time period required by the Trust Loan Purchase Agreement for the Trust Loan Sellers to cure or repurchase the Trust Loan (including any applicable extended cure periods)) or (ii) a sale of all or any portion of the Mortgage Loan by the Special Servicer to the Servicer or the Special Servicer or any Affiliate of the foregoing in accordance with Section 3.16.

 

“Liquidation Fee Rate”: A rate equal to one half of one percent (0.50%).

 

“Liquidation Proceeds”: Amounts (other than Insurance Proceeds and Condemnation Proceeds) received by the Special Servicer and/or the Certificate Administrator in connection with the liquidation of the Specially Serviced Mortgage Loan, the Trust Loan, any Companion Loan, any Note or the Property, whether through judicial foreclosure, sale or otherwise, or in connection with the sale, discounted payoff or other liquidation of the Mortgage Loan, the Trust Loan, any Companion Loan or any Note (other than amounts required to be paid to the Loan Parties pursuant to law or the terms of the Mortgage Loan Agreement) including the proceeds of any full, partial or discounted payoff of the Mortgage Loan, the Trust Loan, any Companion Loan or any Note (exclusive of any portion of such payoff or proceeds that represents Default Interest).

 

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“Loan Party”: Individually or collectively, the Borrower and the Guarantor, as the context requires.

 

“Loan Percentage Interest”: As defined in the Trust Loan Purchase Agreement.

 

“Lower-Tier Distribution Account”: A subaccount of the Distribution Account, which shall be an asset of the Trust Fund and the Lower-Tier REMIC.

 

“Lower-Tier Distribution Amount”: As defined in Section 4.1(b).

 

“Lower-Tier Principal Amount”: With respect to any Class of Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution Date, an amount equal to the Original Lower-Tier Principal Amount of such Class as specified in the Introductory Statement to this Agreement, and (ii) as of any date of determination after the first Distribution Date an amount equal to the Certificate Balance of the Class of Related Certificates on the preceding Distribution Date (after giving effect to distribution of principal and allocation of Realized Losses pursuant to Sections 4.1(b) and 4.3).

 

“Lower-Tier REMIC”: One of two separate REMICs comprising the Trust Fund, the assets of which consist of all of the assets of the Trust Fund other than the assets of the Upper-Tier REMIC.

 

“Major Decision”: Any of the following:

 

(i)       any proposed or actual foreclosure upon or comparable conversion (which may include acquisitions of a Foreclosed Property) of the ownership of the Property;

 

(ii)       any modification, consent to a modification or waiver of any monetary term (other than late fees and Default Interest) or material non-monetary term (including, without limitation, the timing of payments and acceptance of discounted payoffs) of the Mortgage Loan or any extension of the maturity date of the Mortgage Loan;

 

(iii)       any sale of the defaulted Mortgage Loan or Foreclosed Property for less than the applicable Mortgage Loan Purchase Price;

 

(iv)       any determination to bring the Property or any Foreclosed Property into compliance with applicable environmental laws or to otherwise address hazardous material located at a Foreclosed Property;

 

(v)       any release of Collateral (excluding letters of credit) or any acceptance of substitute or additional collateral for the Mortgage Loan, or any consent to either of the foregoing, other than if required pursuant to the specific terms of the Mortgage Loan and for which there is no material lender discretion;

 

(vi)       any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to the Mortgage Loan or any consent to such a waiver or consent to a

 

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transfer of the Property or interests in the Borrower or consent to the incurrence of additional debt or mezzanine debt;

 

(vii)       any property management company changes or modifications, waivers or amendments to any Management Agreement (with respect to the Mortgage Loan for which the lender is required to consent or approve under the Mortgage Loan Documents);

 

(viii)       releases of any escrow accounts, reserve accounts or letters of credit held as performance escrows or reserves other than those required pursuant to the specific terms of the Mortgage Loan and for which there is no material lender discretion;

 

(ix)       any acceptance of an assumption agreement releasing the Borrower from liability under the Mortgage Loan other than pursuant to the specific terms of the Mortgage Loan and for which there is no material lender discretion;

 

(x)       any determination of an Acceptable Insurance Default;

 

(xi)       approval of any Borrower plan of bankruptcy;

 

(xii)       the execution, termination or renewal of any lease, to the extent lender approval is required under the Mortgage Loan Documents and to the extent such lease constitutes a “Major Lease” as defined in the Mortgage Loan Documents, including entering into any subordination, non-disturbance and attornment agreement;

 

(xiii)       any material modification, waiver or amendment of the Co-Lender Agreement, or any action to enforce rights (or decision not to enforce rights) with respect to such Co-Lender Agreement;

 

(xiv)       approving annual budgets (to the extent lender approval is required); or

 

(xv)       approval of casualty/condemnation insurance settlements, any determination to apply casualty proceeds or condemnation awards to the reduction of the debt rather than to the restoration of the related Property other than pursuant to the specific terms of the Mortgage Loan.

 

“Major Decision Reporting Package”: As defined in Section 9.3(a).

 

“Majority Controlling Class Certificateholders”: With respect to the Controlling Class, the Holder(s) of Certificates representing more than fifty percent (50%) of such Controlling Class, by Certificate Balance, as determined by the Certificate Registrar.

 

“Manager”: As defined in the Mortgage Loan Agreement.

 

“Management Agreement”: As defined in the Mortgage Loan Agreement.

 

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“Material Breach”: As defined in the Trust Loan Purchase Agreement.

 

“Material Document Defect”: As defined in the Trust Loan Purchase Agreement.

 

“Maturity Date”: The Scheduled Maturity Date or such other date on which the outstanding principal balance of the Mortgage Loan becomes due and payable, whether by declaration of acceleration, or otherwise.

 

“Modification Fees”: With respect to the Mortgage Loan, any and all fees with respect to a modification, extension, waiver or amendment that modifies, extends, amends or waives any term of the Mortgage Loan Documents (as evidenced by a signed writing) agreed to by the Servicer or the Special Servicer (other than all Assumption Fees, Assumption Application Fees, defeasance fees, consent fees, Special Servicing Fees, Liquidation Fees or Work-out Fees). With respect to each of the Servicer and the Special Servicer, in no event shall either Person be permitted to collect and retain as compensation Modification Fees by such Person from the Borrower (taken in the aggregate with any other Modification Fees collected and earned by such Person from the Borrower) in an aggregate amount in excess of $8,000,000 (i.e., shall be subject to an aggregate cap of $8,000,000).

 

“Monthly Payment”: With respect to the Trust Loan or the Mortgage Loan and any Distribution Date, the scheduled payment of interest on the Trust Loan or the Mortgage Loan, respectively, in each case which is due and payable on the immediately preceding Payment Date.

 

“Monthly Payment Advance”: Any advance made with respect to the Trust Loan by the Servicer or the Trustee pursuant to Section 3.23(a) or, if not made by the Servicer, made by the Trustee pursuant to Section 7.6, as applicable. Each reference to the reimbursement or payment of a Monthly Payment Advance shall be deemed to include, whether or not specifically referred to, payment or reimbursement of interest thereon at the Advance Rate through the date preceding the date of payment or reimbursement.

 

“Moody’s”: Moody’s Investors Service, Inc., and its successors-in-interest.

 

“Mortgage”: As defined in the Mortgage Loan Agreement.

 

“Mortgage File”: As defined in Section 2.1(b) and any additional documents required to be added to the Mortgage File pursuant to this Agreement.

 

“Mortgage Loan”: As defined in the Introductory Statement to this Agreement.

 

“Mortgage Loan Agreement”: As defined in the Introductory Statement.

 

“Mortgage Loan Default”: A “Default” as defined in the Mortgage Loan Agreement.

 

“Mortgage Loan Documents”: All documents executed or delivered by the Loan Parties (or their Affiliates) evidencing or securing the Mortgage Loan and any amendment thereof or thereafter or subsequently added to the Mortgage File, including without limitation the

 

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Mortgage Loan Agreement. For the avoidance of doubt, the Mortgage Loan Documents shall not include the Securitization Indemnification Agreements, and the rights of the Trust Loan Sellers and other parties to the Securitization Indemnification Agreements thereunder will not be part of the Trust Fund.

 

“Mortgage Loan Event of Default”: An “Event of Default” as defined in the Mortgage Loan Agreement.

 

“Mortgage Loan Interest Accrual Period”: With respect to any Payment Date and each Note, the period commencing on and including the first day of the calendar month immediately preceding the month in which such Payment Date occurs to and ending on and including the last day of the calendar month immediately preceding such Payment Date.

 

“Mortgage Loan Purchase Price”: An amount (without duplication) generally equal to the sum of (i) the unpaid principal balance of the defaulted Mortgage Loan, (ii) accrued and unpaid interest on each Note at the related Note Rate through and including the last day of the related Mortgage Loan Interest Accrual Period in which the repurchase is to occur, (iii) unreimbursed Property Protection Advances and Administrative Advances and fees and amounts owed to the Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor and the Trustee together with interest on Advances, (iv) an amount equal to the sum of (A) all interest on outstanding Monthly Payment Advances and (B) all interest on and all unreimbursed Companion Loan Advances and (v) any unpaid Trust Fund Expenses and any amounts owed to the parties to this Agreement or any Other Pooling and Servicing Agreement with respect to the related Companion Loan.

 

“MSBNA”: As defined in the Introductory Statement.

 

“MSMCH”: As defined in the Introductory Statement.

 

“Net Foreclosure Proceeds”: With respect to each related Foreclosed Property, the Foreclosure Proceeds with respect to such related Foreclosed Property net of any insurance premiums, taxes, assessments, ground rents and other costs permitted to be paid therefrom pursuant to Section 3.14.

 

“Net Liquidation Proceeds”: The excess of Liquidation Proceeds received with respect to the Property or the Mortgage Loan over the amount of Liquidation Expenses incurred with respect thereto.

 

“Net Modification Fees”: With respect to the Mortgage Loan, the sum of (A) the remainder, if any, of (i) any and all Modification Fees with respect to a modification, waiver, extension or amendment of any of the terms of the Mortgage Loan, minus (ii) all unpaid or unreimbursed additional expenses (including, without limitation, reimbursement of Advances and Companion Loan Advances and interest on such Advances and Companion Loan Advances at the Advance Rate to the extent not otherwise paid or reimbursed by the Borrower but excluding Special Servicing Fees, Work-out Fees and Liquidation Fees) either outstanding or previously incurred on behalf of the Trust or the Other Securitization Trust with respect to the Mortgage Loan and reimbursed from such Modification Fees and (B) expenses previously paid

 

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or reimbursed from Modification Fees as described in the preceding clause (A), which expenses have been subsequently recovered from the Borrower or otherwise.

 

“Net Proceeds”: As defined in the Mortgage Loan Agreement.

 

“Net Trust Note Rate”: With respect to any Trust Note and any Distribution Date, the annualized rate at which interest would have to accrue in respect of such Trust Note on the basis of a 360-day year consisting of twelve 30-day months in order to produce the aggregate amount of interest (net of interest at the Servicing Fee Rate applicable to the Trust Loan, the Certificate Administrator Fee Rate (including the portion that is the Trustee Fee), the Operating Advisor Fee Rate and the CREFC® Intellectual Property Royalty License Fee Rate and exclusive of any rate at which Default Interest accrues on such Trust Note) actually accrued on such Trust Note during the related Mortgage Loan Interest Accrual Period; provided, however, that for purposes of calculating Pass-Through Rates, each Net Trust Note Rate shall be determined without regard to any modification, waiver or amendment of the terms of the Trust Loan, whether agreed to by the Servicer, the Special Servicer or resulting from a bankruptcy, insolvency or similar proceeding involving the Borrower, or otherwise; provided, further, however, that (i) the Net Trust Note Rate for the Mortgage Loan Interest Accrual Period preceding the Payment Dates in (a) January and February in each year that is not a leap year or (b) in February only in each year that is a leap year (in the case of either (a) or (b), unless the related Distribution Date is the final Distribution Date), shall be the annualized rate at which interest would have to accrue in respect of such Trust Note on the basis of a 360-day year consisting of twelve 30-day months in order to produce the aggregate amount of interest (net of interest at the Servicing Fee Rate applicable to the Trust Loan, the Certificate Administrator Fee Rate (including the portion that is the Trustee Fee), the Operating Advisor Fee Rate and the CREFC® Intellectual Property Royalty License Fee Rate and exclusive of any rate at which Default Interest accrues on such Trust Note) actually accrued on such Trust Note during the related Mortgage Loan Interest Accrual Period, minus the applicable Withheld Amount and (ii) the Net Trust Note Rate for the Mortgage Loan Interest Accrual Period preceding the Payment Date in March (or February, if the related Distribution Date is the final Distribution Date), shall be the annualized rate at which interest would have to accrue in respect of such Trust Note on the basis of a 360-day year consisting of twelve 30-day months in order to produce the aggregate amount of interest (net of interest at the Servicing Fee Rate applicable to the Trust Loan, the Certificate Administrator Fee Rate (including the portion that is the Trustee Fee), the Operating Advisor Fee Rate and the CREFC® Intellectual Property Royalty License Fee Rate and exclusive of any rate at which Default Interest accrues on such Trust Note) actually accrued on such Trust Note during the related Mortgage Loan Interest Accrual Period, plus the applicable Withheld Amounts.

 

“New Lease”: Any lease with respect to a Foreclosed Property entered into at the direction of the Special Servicer on behalf of the Trust, including any lease renewed, modified or extended on behalf of the Trust, if the Trust has the right to renegotiate the terms of such lease.

 

“Non-Book Entry Certificates”: As defined in Section 5.2(c).

 

“Nondisqualification Opinion”: An Opinion of Counsel, prepared at the Trust Fund’s expense and payable from the Collection Account, to the effect that a contemplated

 

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action will not cause (i) either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) a “prohibited transaction” or “prohibited contributions” tax to be imposed on either the Lower-Tier REMIC or the Upper-Tier REMIC at any time that any Certificates are outstanding.

 

“Nonrecoverable Advance”: Any portion of an Advance previously made and not previously reimbursed, or proposed to be made, including interest thereon, which, in accordance with Accepted Servicing Practices (in the case of the Servicer) or good faith and reasonable business judgment (in the case of the Trustee) would not be ultimately recoverable from subsequent payments or collections (including Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds) in respect of the Mortgage Loan or the Property (in the case of Property Protection Advances or Administrative Advances) or the Trust Loan (in the case of Monthly Payment Advances) or from funds on deposit in the Collection Account pursuant to Section 3.4(c). The Trustee may rely conclusively upon a determination of non-recoverability made by the Servicer. The Servicer or the Special Servicer may consider (among other things) the items listed in Section 3.23(h) when making a determination regarding a Nonrecoverable Advance.

 

“Non-U.S. Beneficial Ownership Certification”: As defined in Section 5.3(f).

 

“Non-U.S. Person”: A Person that is not a U.S. Person.

 

“Note Rate”: With respect to each Note, the per annum rate at which interest accrues on such Note as set forth in the Mortgage Loan Agreement without giving effect to the Default Rate.

 

“Notes”: As defined in the Introductory Statement to this Agreement.

 

“NRSRO”: Any nationally recognized statistical rating organization, as defined in Section 3(a)(62) of the Exchange Act, including the Rating Agencies.

 

“NRSRO Certification”: A certification (a) substantially in the form of Exhibit M executed by an NRSRO (including any Rating Agency) or (b) provided electronically and executed by such NRSRO by means of a “click-through” confirmation on the 17g-5 Information Provider’s Website, in either case in favor of the 17g-5 Information Provider that states that (a) such NRSRO is a Rating Agency, or (b) that such NRSRO has provided the Depositor with the appropriate certifications under paragraph (e) of Rule 17g-5, such NRSRO has access to the Depositor’s 17g-5 Internet website and any confidentiality provisions relating to information on the Depositor’s 17g-5 Internet website apply equally to information on the Certificate Administrator’s Website and the 17g-5 Information Provider’s Website.

 

“Offering Circular”: The Offering Circular, dated June 19, 2018, for the Certificates.

 

“Officer’s Certificate”: A certificate signed by (i) the Chairman of the Board, the Vice Chairman of the Board, the President or a Vice President (however denominated), the Treasurer, the Secretary, one of the Assistant Treasurers or Assistant Secretaries, any Servicing Officer, Responsible Officer or other officer of the Servicer, the Special Servicer, the Depositor,

 

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any Trust Loan Seller or any other entity referred to herein, as the case may be, customarily performing functions similar to those performed by any of the above designated officers and also with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject and (ii) with respect to the Certificate Administrator and the Trustee, a Responsible Officer.

 

“Operating Advisor”: Park Bridge Lender Services LLC, a New York limited liability company, and its successors in interest and assigns, or any successor operating advisor appointed as herein provided.

 

“Operating Advisor Annual Report”: As defined in Section 3.26(c).

 

“Operating Advisor Consultation Event”: The event that occurs when the Certificate Balance of the Class HRR Certificates (as notionally reduced by any Appraisal Reduction Amounts allocable to such Class in accordance with Section 3.7(a) of this Agreement) are equal to or less than 25% of the initial Certificate Balance of such Class.

 

“Operating Advisor Consulting Fee”: A fee for each Asset Status Report and Major Decision on which the Operating Advisor has consultation obligations and performed its duties with respect to such Asset Status Report or Major Decision equal to $10,000 (or such lesser amount as the Borrower agrees to pay with respect to such Mortgage Loan), payable pursuant to Section 3.26(h) of this Agreement; provided, however, that the Operating Advisor may in its sole discretion reduce the Operating Advisor Consulting Fee with respect to any Asset Status Report or Major Decision; provided, further, that the Servicer or Special Servicer, as applicable, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the Borrower if it determines that such full or partial waiver is in accordance with Accepted Servicing Practices, but may in no event take any enforcement action with respect to the collection of such Operating Advisor Consulting Fee other than requests for collection (provided that the Servicer or the Special Servicer, as applicable, shall consult, on a non-binding basis, with the Operating Advisor prior to any such waiver or reduction).

 

“Operating Advisor Expenses”: With respect to any Distribution Date, an amount equal to any unreimbursed indemnification amounts or additional Trust Fund expenses payable to the Operating Advisor pursuant to this Agreement (other than the Operating Advisor Fee and the Operating Advisor Consulting Fee).

 

“Operating Advisor Fee”: With respect to the Mortgage Loan, the fee payable to the Operating Advisor pursuant to Section 3.26(h).

 

“Operating Advisor Fee Rate”: With respect to the Mortgage Loan, a per annum rate of 0.00213%.

 

“Operating Advisor Standard”: The requirement that the Operating Advisor must act solely on behalf of the Trust and in the best interest of, and for the benefit of, the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender), and not to any particular class of Certificateholders (as determined by the Operating Advisor in the exercise of its good faith and reasonable judgment), but without regard to any conflict of interest arising from any relationship that the Operating Advisor or any of its Affiliates may have

 

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with the Borrower, the Manager, the Borrower Sponsors, the Guarantor, a Trust Loan Seller, the Depositor, the Servicer, the Special Servicer, the Directing Certificateholder, any Certificateholder or any of their respective Affiliates.

 

“Operating Advisor Termination Event”: Any of the following events, whether any such event is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body:

 

(a)       any failure by the Operating Advisor to observe or perform in any material respect any of its covenants or agreements or the material breach of any of its representations or warranties under this Agreement, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given to the Operating Advisor by any party to this Agreement or to the Operating Advisor, the Certificate Administrator and the Trustee by the holders of Certificates having greater than 25% of the aggregate Voting Rights, provided that with respect to any such failure which is not curable within such thirty (30) day period, the Operating Advisor will have an additional cure period of thirty (30) days to effect such cure so long as it has commenced to cure such failure within the initial thirty (30) day period and has provided the Trustee and the Certificate Administrator with an officer’s certificate certifying that it has diligently pursued, and is continuing to pursue, such cure;

 

(b)       any failure by the Operating Advisor to perform in accordance with the Operating Advisor Standard which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given in writing to the Operating Advisor by any party to this Agreement;

 

(c)       any failure by the Operating Advisor to be an Eligible Operating Advisor, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given in writing to the Operating Advisor by any party to this Agreement;

 

(d)       a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, shall have been entered against the Operating Advisor, and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days;

 

(e)       the Operating Advisor consents to the appointment of a conservator or receiver or liquidator or liquidation committee in any insolvency, readjustment of debt, marshaling of assets and liabilities, voluntary liquidation, or similar proceedings of or relating to the Operating Advisor or of or relating to all or substantially all of its property; or

 

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(f)       the Operating Advisor admits in writing its inability to pay its debts generally as they become due, files a petition to take advantage of any applicable insolvency or reorganization statute, makes an assignment for the benefit of its creditors, or voluntarily suspends payment of its obligations.

 

“Opinion of Counsel”: A written opinion of counsel, who may, without limitation, be counsel for the Depositor, the Operating Advisor, the Servicer or the Special Servicer, reasonably acceptable to the Trustee and the Certificate Administrator.

 

“Original Lower-Tier Principal Amount”: With respect to any Class of Uncertificated Lower-Tier Interests, the initial Lower-Tier Principal Amount thereof as of the Closing Date, in each case as specified in the Introductory Statement to this Agreement.

 

“Origination Date”: June 7, 2018.

 

“Other Depositor”: With respect to any Other Securitization Trust, the related “depositor” (within the meaning of Item 1101(e) of Regulation AB).

 

“Other Exchange Act Reporting Party”: With respect to any Other Securitization Trust that is subject to the reporting requirements of the Exchange Act, the trustee, certificate administrator, master servicer, special servicer, operating advisor or depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or filing of Form 8-K, Form 10-D and Form 10-K with respect to such Other Securitization Trust, as identified in writing to the parties to this Agreement; and, with respect to any Other Securitization Trust that is not subject to the reporting requirements of the Exchange Act and for the purposes of Sections 13.7, 13.8, 13.9 and 13.16 only, the trustee, certificate administrator, master servicer, special servicer, operating advisor or depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or dissemination of periodic distribution date statements or similar reports, as identified in writing to the parties to this Agreement.

 

“Other Pooling and Servicing Agreement”: The applicable pooling and servicing agreement or other applicable comparable agreement governing the creation of any Other Securitization Trust and the issuance of securities with respect to any Companion Loan (or any portion thereof or interest therein).

 

“Other Securitization Trust”: Any “issuing entity” (within the meaning of Item 1101(f) of Regulation AB) that holds a Companion Loan or Foreclosed Companion Loan (or any portion thereof or interest therein), as identified in writing to the parties to this Agreement.

 

“Pass-Through Rate”: For the following Classes of Certificates, the related Pass-Through Rate set forth below, and for each Uncertificated Lower-Tier Interest, the Net Trust Note Rate of the Trust Notes at which, in each case, interest accrues on the Certificate Balance or Lower-Tier Principal Amount, as applicable, of such Class as set forth in the Introductory Statement to this Agreement.

 

Class of Certificates 

Pass-Through Rate 

 

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Class of Certificates 

Pass-Through Rate 

Class A Certificates Class A Pass-Through Rate
Class B Certificates Class B Pass-Through Rate
Class C Certificates Class C Pass-Through Rate
Class D Certificates Class D Pass-Through Rate
Class HRR Certificates Class HRR Pass-Through Rate

 

“Payment Date”: The first day of each calendar month during the term of the Mortgage Loan or, if such day is not a Business Day, the immediately preceding Business Day.

 

“Percentage Interest”: As to any Certificate (other than the Class R Certificates), the initial Certificate Balance of such Certificate divided by the initial Certificate Balance of all of the Certificates of the related Class. With respect to the Class R Certificates, the percentage specified on the Certificate held by the Holder of such Certificate.

 

“Permitted Encumbrances”: As defined in the Mortgage Loan Agreement.

 

“Permitted Investments”: Any one or more of the following obligations or securities (including obligations or securities of the Certificate Administrator, or managed by the Certificate Administrator or any Affiliate of the Certificate Administrator, if otherwise qualifying hereunder), regardless of whether issued by the Depositor, the Servicer, the Special Servicer, the Trustee, the Certificate Administrator, or any of their respective Affiliates and having the required ratings, if any, provided for in this definition and which shall not be subject to liquidation prior to maturity:

 

(i)       direct obligations of, and obligations fully guaranteed as to timely payment of principal and interest by, the United States of America, Fannie Mae, Freddie Mac or any agency or instrumentality of the United States of America, the obligations of which are backed by the full faith and credit of the United States of America that mature in one (1) year or less from the date of acquisition; provided that any obligation of, or guarantee by, any agency or instrumentality of the United States of America shall be a Permitted Investment only if such investment would not result in the downgrading, withdrawal or qualification of the then-current rating assigned by each Rating Agency to any Certificate as evidenced in writing, other than (a) unsecured senior debt obligations of the U.S. Treasury (direct or fully funded obligations), U.S. Department of Housing and Urban Development public housing agency bonds, Federal Housing Administration debentures, Government National Mortgage Association guaranteed mortgage-backed securities or participation certificates, RefCorp debt obligations and SBA-guaranteed participation certificates and guaranteed pool certificates and (b) Farm Credit System consolidated system wide bonds and notes, Federal Home Loan Banks’ consolidated debt obligations, Freddie Mac debt obligations, and Fannie Mae debt obligations;

 

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(ii)       federal funds, unsecured certificates of deposit, time deposits, banker’s acceptances, and repurchase agreements having maturities of not more than 365 days of any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia, the short-term debt obligations of which are rated (a) in one of the following Moody’s rating categories: (1) for maturities less than one month, a long-term rating of “A2” or a short-term rating of “P-1”, (2) for maturities between one and three months, a long-term rating of “A1” and a short-term rating of “P-1”, (3) for maturities between three months to six months, a long-term rating of “Aa3” and a short-term rating of “P-1” and (4) for maturities over six months, a long-term rating of “Aaa” and a short-term rating of “P-1”, (b) in the highest short-term debt rating category of KBRA (if then rated by KBRA) and, if it has a term in excess of three months, the long-term debt obligations of which are rated “AAA” (or the equivalent) by KBRA (if then rated by KBRA) and (c) if not rated by any such Rating Agency, otherwise acceptable to each Rating Agency, and in any such case as confirmed in a Rating Agency Confirmation relating to the Certificates;

 

(iii)       deposits that are fully insured by the Federal Deposit Insurance Corp. (“FDIC”);

 

(iv)       commercial paper rated (a) in one of the following Moody’s rating categories: (i) for maturities less than one month, a long-term rating of “A2” or a short-term rating of “P-1”, (ii) for maturities between one and three months, a long-term rating of “A2” or a short-term rating of “P-1”, (iii) for maturities between three months to six months, a long-term rating of “Aa3” and a short-term rating of “P-1” and (iv) for maturities over six months, a long-term rating of “Aaa” and a short-term rating of “P-1”, and (b) rated in the highest rating category of KBRA (if then rated by KBRA);

 

(v)       any money market fund that (a) has substantially all of its assets invested continuously in the types of investments referred to in clause (i) above, (b) has net assets of not less than $5,000,000,000, (c) has the highest rating obtainable from Moody’s in its highest respective money market fund ratings category and (d) has the highest rating obtainable from KBRA (if then rated by KBRA);

 

(vi)       the Wells Fargo Advantage Heritage Money Market Fund, so long as it is rated by Moody’s and KBRA (if then rated by KBRA) in their highest respective money market fund ratings category (or, if not rated by any such Rating Agency, as otherwise acceptable to such Rating Agency as confirmed in a Rating Agency Confirmation);

 

(vii)      any other demand, money market or time deposit, obligation, security or investment, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i)-(vi) above with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency for which the minimum ratings set forth in the applicable clause is

 

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not satisfied with respect to such demand, money market or time deposit, obligation, security or investment; and

 

(viii)     such other investments as to which each Rating Agency shall have delivered a Rating Agency Confirmation.

 

provided, however, that each Permitted Investment qualifies as a “cash flow investment” pursuant to Section 860G(a)(6) of the Code, and that (a) it shall have a predetermined fixed dollar of principal due at maturity that cannot vary or change and (b) any such investment that provides for a variable rate of interest must have an interest rate that is tied to a single interest rate index plus a fixed spread, if any, and move proportionately with such index; and provided, further, however, that no such instrument shall be a Permitted Investment (a) if such instrument evidences principal and interest payments derived from obligations underlying such instrument and the interest payments with respect to such instrument provide a yield to maturity at the time of acquisition of greater than 120% of the yield to maturity at par of such underlying obligations, (b) if such instrument may be redeemed at a price below the purchase price or (c) if such investment is purchased at a premium over par; and provided, further, however, that no amount beneficially owned by the Upper-Tier REMIC or the Lower-Tier REMIC (even if not yet deposited in the Trust) may be invested in investments (other than money market funds) treated as equity interests for federal income tax purposes, unless the Servicer receives an Opinion of Counsel, at its own expense, to the effect that such investment will not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC. Permitted Investments may not be interest-only securities. All investments shall mature or be redeemable upon the option of the holder thereof on or prior to the earlier of (x) three months from the date of their purchase and (y) the Business Day preceding the day before the date such amounts are required to be applied hereunder.

 

“Permitted Special Servicer/Affiliate Fees”: Any commercially reasonable treasury management fees, banking fees, insurance commissions or fees, property condition report fees and appraisal fees received or retained by the Special Servicer or any of its Affiliates in connection with any services performed by such party with respect to the Trust Loan, Companion Loan or Foreclosed Property in accordance with this Agreement.

 

“Permitted Transferee”: Any Person or agent of such Person other than (a) a Disqualified Organization, (b) any other Person so designated by the Certificate Registrar who is unable to provide an Opinion of Counsel (provided at the expense of such Person or the Person requesting the transfer) to the effect that the transfer of an ownership interest in any Class R Certificate to such Person would not cause the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding, (c) a Disqualified Non-U.S. Person, (d) any partnership if any of its interests are (or under the partnership agreement are permitted to be) owned, directly or indirectly (other than through a U.S. corporation), by a Disqualified Non-U.S. Person or (e) a U.S. Person with respect to whom income from the Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the transferee or any other U.S. Person.

 

“Person”: Any individual, corporation, limited liability company, partnership, joint venture, estate, trust, unincorporated association, bank, any federal, state, county or

 

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municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

 

“Plan”: As defined in Section 5.3(m).

 

“Prepayment Premium”: Any Yield Maintenance Default Premium or other form of prepayment or Yield Maintenance Premium collected on the Mortgage Loan.

 

“Prepayment Rate”: As defined in the Mortgage Loan Agreement.

 

“Prepayment Rate Determination Date”: As defined in the Mortgage Loan Agreement.

 

“Prime Rate”: The “prime rate” published in the “Money Rates” section of The Wall Street Journal; if The Wall Street Journal ceases to publish the “prime rate”, then the Servicer shall select an equivalent publication that publishes such “prime rate”, and if such “prime rate” is no longer generally published or is limited, regulated or administered by a governmental or quasi-governmental body, then the Servicer shall reasonably select a comparable interest rate index.

 

“Principal Distribution Amount”: For each Distribution Date, the sum of (i) the Regular Principal Distribution Amount for such Distribution Date and (ii) the aggregate unpaid Principal Shortfalls in respect of prior Distribution Dates.

 

“Principal Shortfall”: For each Distribution Date, the amount by which the Regular Principal Distribution Amount for such Distribution Date exceeds the amount actually distributed in respect of principal to the Sequential Pay Certificates on such Distribution Date.

 

“Privileged Communications”: Any correspondence between the Directing Certificateholder and the Special Servicer referred to in clause (i) of the definition of “Privileged Information”.

 

“Privileged Information”: Any (i) correspondence between the Directing Certificateholder, on the one hand, and the Trustee, the Servicer or the Special Servicer, on the other hand, related to the Specially Serviced Mortgage Loan or the exercise of the Directing Certificateholder’s consent or consultation rights under this Agreement, (ii) strategically sensitive information that the Special Servicer has reasonably determined could compromise the Trust Fund’s position in any ongoing or future negotiations with the Borrower or other interested party or (iii) information subject to attorney-client privilege; provided, however, that the Certificate Administrator shall not be under any obligation to review whether any inquiry or response contains such direct communication with the Directing Certificateholder.

 

“Privileged Information Exception”: With respect to any Privileged Information, at any time (a) such Privileged Information becomes generally available and known to the public other than as a result of a disclosure directly or indirectly by the party restricted from disclosing such Privileged Information (the “Restricted Party”), (b) it is reasonable and necessary for the Restricted Party to disclose such Privileged Information in working with legal counsel, auditors, arbitration parties, taxing authorities or other governmental agencies, (c) such Privileged

 

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Information was already known to such Restricted Party and not otherwise subject to a confidentiality obligation and/or (d) the Restricted Party is (in the case of the Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, as evidenced by written advice of counsel (which will be an additional expense of the Trust) delivered to each of the Servicer, the Special Servicer, the Directing Certificateholder, the Operating Advisor, the Certificate Administrator and the Trustee), required by law, rule, regulation, order, judgment or decree to disclose such information.

 

“Privileged Person”: The Depositor and its designees, the Initial Purchasers, the Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Trust Loan Sellers, any Companion Loan Holder that delivers an Investor Certification, any other Person who provides the Certificate Administrator with an Investor Certification and any NRSRO that delivers an NRSRO Certification to the Certificate Administrator, which Investor Certification and NRSRO Certification may be submitted electronically via the Certificate Administrator’s Website. For purposes of obtaining access to information in the possession of the Certificate Administrator and/or receiving any information or report from the Certificate Administrator’s Website (including accessing the Investor Q&A Forum), other than Distribution Date Statements only, each Borrower Affiliate, the Manager, and the respective agents or Affiliates of the foregoing (in each case, as evidenced by an Investor Certification in the form of Exhibit K-2 hereto) shall be deemed to not be a “Privileged Person”. Notwithstanding anything herein to the contrary, the provisions hereof shall not limit the Servicer’s ability to make accessible certain information regarding the Mortgage Loan at a website maintained by the Servicer.

 

“Pro Rata and Pari Passu Basis”: As defined in the Co-Lender Agreement.

 

“Property”: As defined in the Mortgage Loan Agreement.

 

“Property Protection Advances”: As defined in Section 3.23(b).

 

“Qualified Replacement Special Servicer”: A replacement special servicer that (i) satisfies all of the eligibility requirements applicable to the Special Servicer contained in this Agreement, (ii) is not the Operating Advisor or an Affiliate of the Operating Advisor, (iii) is not obligated to pay the Operating Advisor (x) any fees or otherwise compensate the Operating Advisor in respect of its obligations under this Agreement, and (y) for the appointment of the successor special servicer or the recommendation by the Operating Advisor for the replacement special servicer to become a Special Servicer, (iv) is not entitled to receive any compensation from the Operating Advisor other than compensation that is not material and is unrelated to the Operating Advisor’s recommendation that such party be appointed as the replacement special servicer, (v) is not entitled to receive any fee from the Operating Advisor for its appointment as successor special servicer, in each case, unless such fee is expressly approved by 100% of the Certificateholders, (vi) (A) confirms in writing that it was appointed to act as, and currently serves as, special servicer on a transaction level basis on the closing date of a commercial mortgage loan securitization with respect to which Moody’s rated one or more classes of certificates and one or more of such classes of certificates are still outstanding and rated by Moody’s and (B) is not a special servicer that has been publicly cited by Moody’s as having servicing concerns as the sole or material factor in any qualification, downgrade or withdrawal of

 

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the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by the applicable servicer prior to the time of determination and (vii) is not a special servicer that has been cited by KBRA as having servicing concerns as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by the applicable servicer prior to the time of determination.

 

“QIB”: A “qualified institutional buyer” within the meaning of Rule 144A.

 

“RAC Decision”: Any of the following actions:

 

(i)       any action described in clauses (v), (vi), (vii) or (ix) of the definition of Major Decision; and

 

(ii)       to the extent not required pursuant to clause (i) above, any acceptance of an assumption agreement releasing the Borrower from liability under the Mortgage Loan.

 

“Rated Final Distribution Date”: The Distribution Date in July 2040.

 

“Rating Agency”: Moody’s and KBRA, as applicable.

 

“Rating Agency Confirmation”: With respect to any matter, confirmation in writing (which may be in electronic form) by a Rating Agency that a proposed action, failure to act or other specified event will not, in and of itself, result in the downgrade, withdrawal or qualification of the then-current rating assigned to any Class of Certificates (if then rated by the Rating Agency) immediately prior to the occurrence of the action, failure to act or other event with respect to which Rating Agency Confirmation is sought, which Rating Agency Confirmation may be obtained or deemed to be satisfied as set forth in Section 3.27 hereof; provided that with respect to any matter affecting any Companion Loan, so long as such Companion Loan (or any portion thereof) is subject to a securitization transaction, any Rating Agency Confirmation shall also refer to the Companion Loan Rating Agency Confirmation from each related Companion Loan Rating Agency to the extent provided in Section 3.27; provided, further, that a written waiver (which may be in electronic form) or other acknowledgment from the Rating Agency indicating its decision not to review or to decline to review the matter for which the Rating Agency Confirmation is sought shall be deemed to satisfy the requirement for the Rating Agency Confirmation from the Rating Agency with respect to such matter. At any time during which no Certificates are rated by a Rating Agency, no Rating Agency Confirmation shall be required from that Rating Agency.

 

“Rating Agency Inquiry”: As defined in Section 4.5(d).

 

“Rating Agency Q&A Forum and Document Request Tool”: As defined in Section 4.5(d).

 

“Realized Loss”: With respect to any Distribution Date, the amount, if any, by which (i) the aggregate Certificate Balances of the Sequential Pay Certificates after giving effect

 

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to distributions made on such Distribution Date exceeds (ii) the outstanding principal balance of the Trust Loan after giving effect to (a) any payments of principal received with respect to the Payment Date occurring immediately prior to such Distribution Date and (b) the aggregate reductions of the principal balance of the Trust Loan that have been permanently made as a result of a bankruptcy proceeding, modification or otherwise.

 

“Record Date”: With respect to each Distribution Date, the close of business on the last Business Day of the calendar month preceding the month in which such Distribution Date occurs.

 

“Regular Certificates”: The Class A, Class B, Class C, Class D and Class HRR Certificates.

 

“Regular Principal Distribution Amount”: For each Distribution Date, the sum of (a) all amounts collected or advanced in respect of principal with respect to the Trust Loan during the related Collection Period and (b) the principal portion of the Mortgage Loan Purchase Price or Repurchase Price or any purchase price, all amounts received in respect of principal from Net Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds or otherwise received in respect of principal on the Trust Loan.

 

“Regulation AB”: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time. Each of the parties hereto acknowledge that the Regulation AB provisions herein shall be construed as if the Certificates were publicly registered and reporting were required at all times.

 

“Regulation S”: Regulation S under the Act.

 

“Regulation S Global Certificate”: As defined in Section 5.2(a).

 

“Related Certificates”: For the following Classes of Certificates, Classes of Uncertificated Lower-Tier Interests and Notes, the related Class of Certificates, Class of Uncertificated Lower-Tier Interests or Note, as applicable, set forth below:

 

Related Uncertificated Lower-Tier Interests 

Related Certificates 

Class LA Uncertificated Interest Class A
Class LB Uncertificated Interest Class B
Class LC Uncertificated Interest Class C
Class LD Uncertificated Interest Class D
Class LHRR Uncertificated Interest Class HRR

 

“Relevant Action”: As defined in Section 3.27(c).

 

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“Relevant Distribution Date” means with respect to any “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) with respect to an Other Securitization Trust holding a Companion Loan, the “Distribution Date” (or analogous concept) under the related Other Pooling and Servicing Agreement.

 

“REMIC”: A “real estate mortgage investment conduit” within the meaning of Section 860D of the Code.

 

“REMIC Provisions”: Provisions of the Code relating to “real estate mortgage investment conduits,” including Sections 860A through 860G of the Code and any related regulations or announcements promulgated thereunder by the U.S. Department of the Treasury.

 

“Remittance Date”: With respect to each Distribution Date, the Business Day immediately preceding such Distribution Date.

 

“Rents from Real Property”: With respect to any Foreclosed Property, gross income of the character described in Section 856(d) of the Code.

 

“REO Management Fee”: As to the Property when it is Foreclosed Property, a fee payable out of the Foreclosed Property Account to the Successor Manager for managing the Property while it is owned by the Trust Fund, which shall be reasonable and customary in the market in which the Property is located.

 

“Reporting Servicer”: The Servicer, the Special Servicer or a Servicing Function Participant engaged by any such party, as the case may be.

 

“Repurchase Communication”: For purposes of Section 2.2(d) only, any communication, whether oral or written, which need not be in any specific form.

 

“Repurchase Price”: An amount (without duplication) equal to (a) with respect to the Trust Loan, the sum of (i) the unpaid principal balance of the Trust Loan, (ii) accrued and unpaid interest on the Trust Loan at the weighted average of the Trust Note Rates (exclusive of the Default Rate) to and including the last day of the related Mortgage Loan Interest Accrual Period in which the repurchase is to occur (or, in the case of a repurchase of a portion of the Trust Loan, an amount equal to the aggregate accrued and unpaid interest at the weighted average of the Note Rates (exclusive of the Default Rate) on the portion(s) of the amount in clause (i) being reduced from the principal balance of the Trust Loan), (iii) unreimbursed Property Protection Advances and Administrative Advances together with interest on Advances allocable to the Trust Loan pursuant to the Co-Lender Agreement, (iv) an amount equal to all interest on outstanding Monthly Payment Advances, (v) any unpaid Trust Fund Expenses allocable to the Trust Loan pursuant to the Co-Lender Agreement and (vi) any other out-of-pocket expenses reasonably incurred or expected to be incurred by the Servicer, Special Servicer, Certificate Administrator, Trustee or Operating Advisor arising out of the enforcement of the repurchase obligation, and (b) with respect to any repurchase by a single Trust Loan Seller of any of such Trust Loan Seller’s individual Trust Notes, the sum of (i) the unpaid principal balance of such Trust Note, (ii) accrued and unpaid interest on such Trust Note at the related Note Rate (exclusive of the Default Rate) to and including the last day of the related Mortgage Loan Interest Accrual Period in which the repurchase is to occur, (iii) unreimbursed Property

 

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Protection Advances and Administrative Advances together with interest on Advances (in each case, allocable to such Trust Note pursuant to the Co-Lender Agreement), (iv) an amount equal to all interest on outstanding Monthly Payment Advances (allocable to such Trust Note pursuant to the Co-Lender Agreement), (v) any unpaid Trust Fund Expenses (allocable to such Trust Note pursuant to the Co-Lender Agreement) and (vi) any other out-of-pocket expenses reasonably incurred or expected to be incurred by the Servicer, Special Servicer, Certificate Administrator, Trustee or Operating Advisor arising out of the enforcement of the repurchase obligation (allocable to such Trust Note pursuant to the Co-Lender Agreement). No Liquidation Fee shall be paid by the Trust Loan Sellers in connection with a repurchase of the Trust Loan (or a portion of the Trust Loan) due to a Material Breach or a Material Document Defect pursuant to the Trust Loan Purchase Agreement, so long as such repurchase occurs within the ninety (90) day time period required by the Trust Loan Purchase Agreement for the Trust Loan Sellers or a Trust Loan Seller to cure or repurchase the Trust Loan or a portion of the Trust Loan, respectively (including any applicable extended cure periods).

 

“Repurchase Request”: With respect to the Trust Loan, any request or demand whether oral or written that the Trust Loan be repurchased or replaced, whether arising from a Material Breach or Material Document Defect or other breach of a representation or warranty.

 

“Repurchase Request Recipient”: As defined in Section 2.2(d).

 

“Repurchase Request Withdrawal”: As defined in Section 2.2(d).

 

“Repurchased Note”: As defined in Section 3.29.

 

“Repurchasing Seller”: As defined in Section 3.29.

 

“Requesting Holders”: As defined in Section 3.7(e).

 

“Requesting Party”: As defined in Section 3.26.

 

“Required Advance Amount”: With respect to any Distribution Date, an amount equal to (a) the amount of the Monthly Payment Advance with respect to the Trust Loan (taking into account any Trust Appraisal Reduction Amount as of such Distribution Date) that would be required to be made on the related Remittance Date by the Servicer had the Borrower not made any portion of the Monthly Payment (or an Assumed Monthly Payment) for the related Payment Date (or an assumed Payment Date) less (b) the aggregate compensation payable on such Remittance Date to the Servicer in respect of the Servicing Fee, to the Certificate Administrator in respect of the Certificate Administrator Fee (including the portion that constitutes the Trustee Fee), to the Operating Advisor in respect of the Operating Advisor Fee and to CREFC® in respect of the CREFC® Intellectual Property Royalty License Fee.

 

“Required Third Party Purchaser Retention Amount”: The entire Certificate Balances of the Risk Retention Certificates.

 

“Reserve Account”: Any reserve account required to be maintained under the Mortgage Loan Agreement.

 

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“Residual Ownership Interest”: Any record or beneficial interest in the Class R Certificates.

 

“Responsible Officer”: When used with respect to (i) the Trustee, any officer of the Corporate Trust Office of the Trustee with direct responsibility for the administration of this Agreement and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, and (ii) the Certificate Administrator, any officer assigned to the Corporate Trust Services group, with direct responsibility for the administration of this Agreement and also, with respect to a particular matter, any other officer to whom a particular matter is referred by the Certificate Administrator because of such officer’s knowledge of and familiarity with the particular subject, and in the case of any certification or other document required to be signed by a Responsible Officer, an authorized signatory whose name and specimen signature appears on a list furnished to the Servicer or the Special Servicer, as applicable, by the Trustee or the Certificate Administrator, as applicable, as such list may from time to time be amended.

 

“Restricted Party”: As defined in the Mortgage Loan Agreement.

 

“Restricted Period”: As defined in Section 5.2(a).

 

“Retained Fee Rate”: With respect to the Mortgage Loan (and any successor foreclosed property with respect thereto) 0.00125% and with respect to the Companion Loan, 0%.

 

“Retaining Sponsor”: JPMCB.

 

“Risk Retention Affiliate” or “Risk Retention Affiliated”: As “affiliate” or “affiliated” are defined in Section 244.2 of the Credit Risk Retention Rules.

 

“Risk Retention Agreement”: The Risk Retention Agreement, made and entered into in June 2018, by and among the Depositor, JPMCB and the Third Party Purchaser.

 

“Risk Retention Certificates”: The Class HRR Certificates.

 

“Risk Retention Period”: The period from the Closing Date until the date that is the earliest of (i) the latest of (A) the date on which the total unpaid principal balance of the Mortgage Loan has been reduced to 33% of the total unpaid principal balance of the Mortgage Loan as of the Cut-off Date; (B) the date on which the total outstanding Certificate Balance of the Certificates has been reduced to 33% of the total outstanding Certificate Balance of the Certificates as of the Closing Date; and (C) two years after the Closing Date; (ii) the date on which the Mortgage Loan has been defeased in accordance with §244.7(b)(8)(i) of the Credit Risk Retention Rules; or (iii) subject to the consent of the Retaining Sponsor (which consent shall not be unreasonably withheld), the date on which the Credit Risk Retention Rules have been officially repealed or abolished in their entirety or officially determined by the relevant regulatory agencies to be no longer applicable to the transaction or the Risk Retention Certificates.

 

“Rule 15Ga-1”: Rule 15Ga-1 under the Exchange Act.

 

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“Rule 15Ga-1 Notice”: As defined in Section 2.2(d).

 

“Rule 17g-5”: Rule 17g-5 under the Exchange Act.

 

“Rule 144A”: As defined in Section 5.2(b).

 

“Rule 144A Global Certificate”: As defined in Section 5.2(b).

 

“Rule 144A Information”: As defined in Section 3.21(c).

 

“Rule 144A Information Recipients”: As defined in Section 3.21(c).

 

“S&P”: S&P Global Ratings, a Standard & Poor’s Financial Services LLC business, and its successors-in-interest. If neither S&P nor any successor remains in existence, “S&P” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, the Servicer, the Directing Certificateholder and the Special Servicer and specific ratings of S&P herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Sarbanes Oxley Act” means the Sarbanes Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission’s staff).

 

“Sarbanes-Oxley Certification”: With respect to an Other Securitization Trust, the certification required to be filed together with such Other Securitization Trust’s Exchange Act report on Form 10-K pursuant to Rule 13a-14 and Rule 15d-14 of the Exchange Act.

 

“Scheduled Maturity Date”: The Payment Date occurring in July 2028.

 

“Securitization Cooperation Provisions”: The provisions set forth in Sections 9.1 and 9.2 of the Mortgage Loan Agreement (which sections provide for, among other things, indemnifications by the Borrower for certain information contained in the Offering Circular).

 

“Securitization Indemnification Agreements”: (i) The indemnification agreement, dated as of June 15, 2018, among the Depositor, the Initial Purchasers, the Trust Loan Sellers and the Borrower, (ii) the indemnification agreement, dated as of June 19, 2018, among the Depositor, the Initial Purchasers, the Trust Loan Sellers and the Borrower, and (iii) the indemnification agreement, dated as of June 29, 2018, among the Depositor, the Initial Purchasers, the Trust Loan Sellers and the Borrower.

 

“Sequential Pay Certificates”: The Certificates other than the Class R Certificates.

 

“Servicer”: Wells Fargo Bank, National Association, or if any successor Servicer is appointed as herein provided, such successor servicer.

 

“Servicer Customary Expense”: As defined in Section 3.17.

 

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“Servicer Investment Personnel”: As defined in Section 6.5(a).

 

“Servicer Servicing Personnel”: As defined in Section 6.5(a).

 

“Servicer Termination Event”: As defined in Section 7.1(a).

 

“Service(s)” or “Servicing”: In accordance with Regulation AB, the act of servicing and administering the Mortgage Loan or any other assets of the Trust by an entity (other than the Certificate Administrator or Trustee) that meets the definition of “servicer” set forth in Item 1101 of Regulation AB and is subject to the disclosure requirements set forth in Item 1108 of Regulation AB. For clarification purposes, any uncapitalized occurrence of this term shall have the meaning commonly understood by participants in the commercial mortgage-backed securities industry.

 

“Servicing Criteria”: The criteria set forth in paragraph (d) of Item 1122 of Regulation AB as such may be amended from time to time and which as of the Closing Date are listed on Exhibit L hereto.

 

“Servicing Fee”: With respect to the Trust Loan, each Companion Loan and any Foreclosed Property, a fee payable monthly to the Servicer pursuant to Section 3.17, that will accrue at the Servicing Fee Rate, computed on the basis of the same principal amount, on the same interest accrual basis, and for the same Mortgage Loan Interest Accrual Period respecting which any related interest payment on the Trust Loan or such Companion Loan, as the case may be, is (or would have been) computed. For the avoidance of doubt, the Servicing Fee with respect to the Trust Loan shall be deemed payable from the Lower-Tier REMIC.

 

“Servicing Fee Rate”: With respect to the Trust Loan, 0.00250% per annum; and with respect to the Companion Loans, 0.00125% per annum.

 

“Servicing Function Participant”: Any Additional Servicer, Sub-Servicer, Subcontractor or any other Person, other than the Trustee, the Certificate Administrator, the Operating Advisor, the Servicer and the Special Servicer, that is performing activities that address the Applicable Servicing Criteria as of any date of determination.

 

“Servicing Officer”: Any officer of the Servicer or the Special Servicer involved in, or responsible for, the administration and servicing of the Mortgage Loan whose name and specimen signature appear on a list of servicing officers furnished to the Trustee and the Certificate Administrator on the Closing Date by the Servicer or the Special Servicer, as applicable, in the form of an Officer’s Certificate, as such list may from time to time be amended.

 

“Servicing-Released Bid”: As defined in Section 7.2(b).

 

“Servicing-Retained Bid”: As defined in Section 7.2(b).

 

“Significant Obligor NOI Quarterly Filing Deadline”: With respect to each calendar quarter (other than the fourth calendar quarter of any calendar year), the date that is fifteen (15) days after the Relevant Distribution Date occurring on or immediately following the

 

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date on which financial statements for such calendar quarter are required to be delivered to the related lender under the Mortgage Loan Documents. The parties to this Agreement acknowledge that that in the event the Property securing a Companion Loan is a “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) with respect to an Other Securitization Trust that includes such Companion Loan, the date on which quarterly financial statements are required to be delivered to the related lender under the Mortgage Loan Documents is, with respect to net operating income information, forty-five (45) days following the end of each fiscal quarter, subject to the terms of the Mortgage Loan Agreement.

 

“Significant Obligor NOI Yearly Filing Deadline”: With respect to each calendar year, the date that is the 90th day after the end of such calendar year.

 

“Similar Law”: As defined in Section 5.3(m).

 

“Special Notice”: As defined in Section 5.6.

 

“Special Servicer”: CWCapital Asset Management LLC, a Delaware limited liability company, or if any successor special servicer is appointed as herein provided, such successor special servicer.

 

“Special Servicer Customary Expense”: As defined in Section 3.17.

 

“Special Servicer Investment Personnel”: As defined in Section 6.5(b).

 

“Special Servicer Servicing Personnel”: As defined in Section 6.5(b).

 

“Special Servicer Termination Event”: As defined in Section 7.1(a).

 

“Special Servicing Fee”: If the Mortgage Loan becomes a Specially Serviced Mortgage Loan, a fee payable monthly to the Special Servicer equal to an amount computed on the basis of the same principal amount and for the same period respecting which any related interest payment on the Specially Serviced Mortgage Loan is computed, at a rate of 0.25% per annum until the Special Servicing Loan Event with respect to the Specially Serviced Mortgage Loan no longer exists. Such fee shall be in addition to, and not in lieu of, any other fee or other sum payable to the Special Servicer under this Agreement. For the avoidance of doubt, the Special Servicing Fee shall be deemed payable from the Lower-Tier REMIC.

 

“Special Servicing Loan Event”: With respect to the Trust Loan or the Mortgage Loan, (i) the Borrower has not made two consecutive Monthly Payments (and has not cured at least one such delinquency by the next Payment Date under the Mortgage Loan Documents) in respect of the Mortgage Loan; (ii) the Servicer and/or the Trustee have made two consecutive Monthly Payment Advances with respect to the Trust Loan or the Mortgage Loan (regardless of whether such Monthly Payment Advances have been reimbursed); (iii) the Borrower fails to make the entire Balloon Payment when due, and the Borrower has not delivered to the Servicer, on or before the due date of such Balloon Payment, a written refinancing commitment from an acceptable lender and reasonably satisfactory in form and substance to the Servicer which provides that such refinancing will occur within 120 days after the date on which such Balloon Payment will become due (provided that a Special Servicing Loan Event will occur if either

 

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(x) such refinancing does not occur before the expiration of the time period for refinancing specified in such binding commitment or (y) the Servicer is required to make a Monthly Payment Advance at any time prior to such refinancing); (iv) the Servicer and/or Special Servicer has received notice that the Borrower has become the subject as debtor of any bankruptcy, insolvency or similar proceeding, admitted in writing the inability to pay its debts as they come due or made an assignment for the benefit of creditors; (v) the Servicer and/or Special Servicer has received notice of a foreclosure or threatened foreclosure of any lien on the Property; (vi) the Borrower has expressed in writing to the Servicer or Special Servicer an inability to pay the amounts owed under the Mortgage Loan in a timely manner, (vii) in the judgment of the Servicer (consistent with Accepted Servicing Practices), a default in the payment of principal or interest under the Mortgage Loan is reasonably foreseeable; or (viii) a default under the Mortgage Loan of which the Servicer has notice (other than a failure by the Borrower to pay principal or interest) and which materially and adversely affects the interests of the Certificateholders or any Companion Loan Holder has occurred and remains unremedied for the applicable grace period specified in the Mortgage Loan Documents (or, if no grace period is specified, 60 days); provided, that a Special Servicing Loan Event shall cease (a) with respect to the circumstances described in clauses (i), (ii) and (iii) above, when the Borrower has brought the Mortgage Loan current and with respect to clauses (i) and (ii) above, thereafter made three consecutive full and timely Monthly Payments on the Mortgage Loan, including, in the case of any of clauses (i), (ii) or (iii) above, including pursuant to the workout of the Mortgage Loan, or (b) with respect to the circumstances described in clauses (iv), (v), (vi), (vii) and (viii) above, when such circumstances cease to exist in the judgment of the Servicer or the Special Servicer (consistent with Accepted Servicing Practices); provided, in any case, that at that time no other circumstance exists (as described above) that would constitute a Special Servicing Loan Event.

 

“Specially Serviced Mortgage Loan”: The Mortgage Loan during the occurrence of a Special Servicing Loan Event.

 

“Startup Day”: As defined in Section 12.1(c).

 

“Subsequent Asset Status Report”: As defined in Section 3.10(i).

 

“Subcontractor”: Any vendor, subcontractor or other Person that is not responsible for the overall servicing (as “servicing” is commonly understood by participants in the mortgage-backed securities industry) of the Mortgage Loan but performs one or more discrete functions identified in Item 1122(d) of Regulation AB with respect to the Mortgage Loan under the direction or authority of the Servicer (or a Sub-Servicer of the Servicer), the Special Servicer or an Additional Servicer (or a Sub-Servicer of an Additional Servicer).

 

“Sub-Servicer”: Any Person that (i) Services the Mortgage Loan on behalf of the Servicer or any Sub-Servicer and (ii) is responsible for the performance (whether directly or through Sub-Servicers or Subcontractors) of a substantial portion of the servicing functions required to be performed by the Servicer, Servicing Function Participant or an Additional Servicer, under this Agreement, with respect to the Mortgage Loan, that are identified in Item 1122(d) of Regulation AB.

 

“Successful Bidder”: As defined in Section 7.2(b).

 

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“Successor Manager”: Any Independent Contractor as selected or retained by the Special Servicer, on behalf of the Trust, to serve as manager of a Foreclosed Property, which designation, as evidenced by a Rating Agency Confirmation from each Rating Agency, will not result in the downgrade, withdrawal or qualification of the ratings assigned to the Certificates or
any Companion Loan Securities by such Rating Agency.

 

“Tax Matters Person”: The Person designated as the “tax matters person” of the Upper-Tier REMIC and the Lower-Tier REMIC, pursuant to Treasury Regulations Section 1.860F-4(d).

 

“Temporary Regulation S Global Certificate”: As defined in Section 5.2(a).

 

“Terminated Party”: As defined in Section 7.1(g).

 

“Terminating Party”: As defined in Section 7.1(g).

 

“Third Party Purchaser”: BREDS HG SD (Delaware) L.P., or any Person that purchases the Certificates comprising the Required Third Party Purchaser Retention Amount in accordance with this Agreement and applicable laws and regulations.

 

“Third Party Purchaser Safekeeping Account”: An account maintained by the Certificate Administrator, which account shall be established at the direction of the Retaining Sponsor for the benefit of the Holders of the Risk Retention Certificates.

 

“Transferee Affidavit”: As defined in Section 5.3(n)(ii).

 

“Transferor Letter”: As defined in Section 5.3(n)(ii).

 

“Trust”: The trust created hereby and to be administered hereunder. The Trust shall be named “Aventura Mall Trust 2018-AVM”.

 

“Trust A Notes”: The A-1 Notes.

 

“Trust Appraisal Reduction Amount”: Any portion of the Appraisal Reduction Amount allocated to the Trust Notes.

 

“Trust B Note”: The B Notes.

 

“Trust Fund”: The corpus of the Trust created by this Agreement, consisting of (i) the Trust Loan, including the Trust Notes together with the Mortgage File (exclusive of the original Companion Loan Notes) relating thereto (other than the rights of the Lender under the Securitization Cooperation Provisions, which rights shall be retained by the Trust Loan Seller and shall not be assigned to the Trustee under this Agreement); (ii) all scheduled and unscheduled payments on or collections in respect of the Trust Notes; (iii) any Foreclosed Property (but only to the extent of the Trust’s interest in such Foreclosed Property); (iv) all revenues received in respect of any Foreclosed Property (but only to the extent of the Trust’s interest in such Foreclosed Property); (v) the Servicer’s, Special Servicer’s and the Trustee’s rights under the insurance policies with respect to the Property required to be maintained

 

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pursuant to this Agreement and any proceeds thereof (but only to the extent of the Trust’s interest therein); (vi) any indemnities or guaranties given as additional security for the Trust Notes (but only to the extent of the Trust’s interest therein); (vii) all funds deposited in the Collection Account (but only to the extent of the Trust’s interest therein), the Interest Reserve Account and the Distribution Account, including reinvestment income thereon (except as otherwise provided herein); (viii) any environmental indemnity agreements relating to the Property (but only to the extent of the Trust’s interest therein); (ix) the rights and remedies of the Depositor under the Trust Loan Purchase Agreement; (x) the security interest in the Reserve Accounts granted pursuant to Section 2.1 (but only to the extent of the Trust’s interest therein); (xi) all other assets included or to be included in the Lower-Tier REMIC for the benefit of the Upper-Tier REMIC; (xii) the Uncertificated Lower-Tier Interests; (xiii) the Interest Deposit Amount and (xiv) the proceeds of any of the foregoing.

 

“Trust Fund Expenses”: Any unanticipated and certain other default related expenses incurred by the Trust (including, without limitation, all interest on Advances and any other unanticipated expenses of the Trust reimbursable or payable by the Loan Parties under the Mortgage Loan Agreement, to the extent not reimbursed by the Borrower or deemed a Nonrecoverable Advance) and all other amounts (such as indemnification payments, Special Servicing Fees, Work-out Fees and Liquidation Fees), in each case, permitted to be retained, reimbursed or withdrawn and remitted by the Servicer, the Special Servicer, the Operating Advisor or the Certificate Administrator (on behalf of itself or the Trustee), as applicable, from the Collection Account or the Distribution Account pursuant to this Agreement.

 

“Trust Loan”: As defined in the Introductory Statement.

 

“Trust Loan Purchase Agreement”: The Trust Loan Purchase and Sale Agreement dated as of the Closing Date, by and among the Trust Loan Sellers and the Depositor.

 

“Trust Loan Sellers”: As defined in the Introductory Statement.

 

“Trust Note Rate”: With respect to any Trust Note, the Note Rate of such Trust Note.

 

“Trust Notes”: As defined in the Introductory Statement.

 

“Trust REMIC”: The Upper-Tier REMIC or the Lower-Tier REMIC, individually or collectively, as the context may require.

 

“Trustee”: Wilmington Trust, National Association, in its capacity as trustee, or if any successor trustee is appointed as herein provided, such successor trustee.

 

“Trustee Fee”: The portion of the Certificate Administrator Fee payable monthly by the Certificate Administrator to the Trustee pursuant to Section 8.5 which will accrue at the Trustee Fee Rate.

 

“Trustee Fee Rate”: As described in the definition of “Certificate Administrator Fee Rate”.

 

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“Uncertificated Lower-Tier Interests”: Any of the Class LA, Class LB, Class LC, Class LD, Class LE and Class LHRR Uncertificated Interests.

 

“Uninsured Cause”: Any cause of damage to the Property subject to the Mortgage such that the complete restoration of the Property is not fully reimbursable (but without regard to any applicable deductible provisions) by any insurance policy required to be maintained with respect thereto pursuant to the terms of the Mortgage Loan Documents or this Agreement.

 

“Unscheduled Payments”: With respect to any Distribution Date, all payments and collections received with respect to the Mortgage Loan or upon foreclosure or liquidation of the Property (net of related foreclosure expenses and Liquidation Expenses) during the related Collection Period including, but not limited to, prepayments due to acceleration of the Mortgage Loan, Net Liquidation Proceeds, Net Proceeds, Net Foreclosure Proceeds, Condemnation Proceeds, Insurance Proceeds, voluntary prepayments and other payments and collections on the Mortgage Loan not scheduled to be received, other than Monthly Payments or the Balloon Payment.

 

“Upper-Tier Distribution Account”: A subaccount of the Distribution Account, which shall be an asset of the Trust Fund and the Upper-Tier REMIC.

 

“Upper-Tier REMIC”: One of the two separate REMICs comprising the Trust Fund, the assets of which consist of the Uncertificated Lower-Tier Interests and such amounts as shall from time to time be held in the Upper-Tier Distribution Account.

 

“U.S. Person”: A Person that is (i) a citizen or resident alien of the United States, (ii) a corporation, partnership (except as provided in applicable Treasury regulations) or other entity created or organized in or under the laws of the United States, any State of the United States or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, (iii) an estate whose income is subject to United States federal income tax regardless of the source of its income, (iv) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury regulations, certain trusts in existence on August 20, 1996 that have elected to be treated as a U.S. Person) or (v) any other Person that is disregarded as separate from its ownership for U.S. federal income tax purposes and whose owner is described in clauses (i) through (iv) above.

 

“U.S. Securities Person”: A “U.S. person” as defined in Rule 902(k) of Regulation S.

 

“Voting Rights”: The portion of the voting rights of all of the Certificates that is allocated to any Certificate or Class of Certificates. At any time that any Certificates are outstanding, the Voting Rights shall be allocated among the respective Classes of Certificateholders as follows: a percentage equal to the product of 100% and a percentage equal to the aggregate Certificate Balances (and in connection with certain votes described in this Agreement, taking into account any notional reduction in the Certificate Balance for the Trust

 

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Appraisal Reduction Amounts allocated to the Certificates) of the Class, in each case, determined as of the prior Distribution Date, divided by the aggregate Certificate Balance (and in connection with certain votes under this Agreement, taking into account any notional reduction in the Certificate Balance for the Trust Appraisal Reduction Amounts allocated to the Certificates) of all Classes of Sequential Pay Certificates, in each case determined as of the prior Distribution Date. The Class R Certificates shall not be entitled to any Voting Rights.

 

“WAC Rate”: With respect to any Distribution Date is equal to the weighted average of the applicable Net Trust Note Rates of the Trust Notes as of the first day of the related Collection Period, weighted on the basis of their respective principal balances as of the first day of such Collection Period (after giving effect to any payments received during any applicable grace period).

 

“Weighted Average Note Rate”: With respect to any Distribution Date and the Mortgage Loan, the weighted average of the Note Rates (weighted based on the outstanding principal balance of the related Note as of such date).

 

“Wells Fargo Bank, National Association”: Wells Fargo Bank, National Association, a national banking association, and its successors-in-interest.

 

“WFB”: As defined in the Introductory Statement.

 

“Withheld Amounts”: As defined in Section 3.4(f).

 

“Work-out Fee”: A fee payable to the Special Servicer pursuant to Section 3.17 equal to 0.50% of each payment of principal and interest (other than Default Interest) made on the Mortgage Loan following the execution of a written agreement with the applicable Loan Parties negotiated by the Special Servicer, if a Special Servicing Loan Event is terminated following resolution of such Special Servicing Loan Event by such agreement (for so long as another Special Servicing Loan Event does not occur); provided that any such Work-out Fee shall be reduced by any Net Modification Fees paid by the Borrower with respect to the Mortgage Loan that were received and retained by the Special Servicer, but only to the extent those Net Modification Fees have not previously been deducted from a Work-out Fee or Liquidation Fee (each amount of the Work-out Fee will be reduced to an amount (but not to an amount less than zero) until the aggregate amount of such reductions equals such Net Modification Fees).

 

“Yield Maintenance Default Premium”: As defined in the Mortgage Loan Agreement.

 

“Yield Maintenance Premium”: As defined in the Mortgage Loan Agreement.

 

1.2.       Interpretation. (a) Whenever this Agreement refers to a Distribution Date and a “related” Collection Period, Mortgage Loan Interest Accrual Period, Certificate Interest Accrual Period or Payment Date, such reference shall be to the Collection Period, Mortgage Loan Interest Accrual Period, Certificate Interest Accrual Period or Payment Date, as applicable, occurring immediately preceding or most recently ended prior to, as applicable, such Distribution Date.

 

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(b)       Whenever this Agreement refers to a Distribution Date and an “applicable” Pass-Through Rate, such reference shall be to the Pass-Through Rate for the applicable Class for the related Certificate Interest Accrual Period.

 

(c)       The words “hereof”, “herein”, and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section and Exhibit references contained in this Agreement are references to Sections and Exhibits in or to this Agreement unless otherwise specified.

 

(d)       Calculations of interest on the Regular Certificates shall be computed on the basis of a 360-day year consisting of twelve 30-day months.

 

1.3.       Certain Calculations in Respect of the Trust Loan or the Mortgage Loan. (a) All amounts collected by or on behalf of the Trust in respect of the Mortgage Loan in the form of payments from or on behalf of the Loan Parties, Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds (other than amounts related to clause (b) of the definition thereof required to be applied to the restoration, preservation or repair of the Property or to be released to the Borrower in accordance with the Loan Documents) shall be applied to amounts due and owing under the Mortgage Loan Documents and the Co-Lender Agreement (including for principal and accrued and unpaid interest) in accordance with the express provisions of the Mortgage Loan Documents and the Co-Lender Agreement; provided, however, in the absence of such express provisions or if and to the extent that such terms authorize the mortgagee to use its discretion and in any event for purposes of calculating distributions hereunder after a Mortgage Loan Event of Default, all such amounts collected that are not required to be distributed to the Companion Loan Holders pursuant to the Co-Lender Agreement shall be deemed to be applied in the following order of priority: first, as a recovery of any unreimbursed Advances plus interest accrued thereon at the Advance Rate and, if applicable, unreimbursed Liquidation Expenses and unpaid Trust Fund Expenses; second, as a recovery of Nonrecoverable Advances or interest thereon to the extent previously reimbursed from principal collections with respect to the Mortgage Loan or the Trust Loan, as applicable; third, as a recovery of accrued and unpaid interest on the Trust Notes that have not been the subject of a Monthly Payment Advance, to the extent of the excess of (i) accrued and unpaid interest on each outstanding Trust Note at the applicable Net Trust Note Rate (without giving effect to any increase in such Net Trust Note Rate required under the Mortgage Loan Agreement as a result of a Mortgage Loan Event of Default) through and including the end of the Mortgage Loan Interest Accrual Period in which such collections were received by or on behalf of the Trust, over (ii) the cumulative amount of the reductions (if any) in the amount of the interest portion of the related Monthly Payment Advances for the Trust Loan that have theretofore occurred under Section 3.23(a) in connection with Trust Appraisal Reduction Amounts (to the extent that collections have not been applied as a recovery of accrued and unpaid interest pursuant to clause fifth below on earlier dates) (such accrued and unpaid interest to be applied sequentially to accrued and unpaid interest on the Trust A Note and Trust B Note, in that order); fourth, as a recovery of principal of the Trust Loan then due and payable on the Trust Loan to the extent of its entire unpaid principal balance), first, to the Trust A Note and then to the Trust B Note, in each case until their respective principal balances have been reduced to zero; fifth, as a recovery of accrued and unpaid interest on the Trust Loan to the extent of the cumulative amount of the reductions (if any) in the amount

 

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of the interest portion of the related Monthly Payment Advances for the Trust Loan that have theretofore occurred under Section 3.23(a) in connection with Trust Appraisal Reduction Amounts (to the extent that collections have not been applied as recovery of accrued and unpaid interest pursuant to this clause fifth on earlier dates) (such accrued and unpaid interest to be applied sequentially to accrued and unpaid interest on the Trust A Note and Trust B Note, in that order); sixth, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments and insurance premiums and similar items relating to the Mortgage Loan; seventh, as a recovery of any other reserves to the extent then required to be held in escrow with respect to the Mortgage Loan; eighth, as a recovery of any Yield Maintenance Premium or Yield Maintenance Default Premium on the Trust Loan; ninth, as a recovery of any Assumption Fees and Modification Fees then due and owing under the Mortgage Loan; tenth, as a recovery of any Default Interest or late charges then due and owing under the Mortgage Loan; and eleventh, as a recovery of any other amounts then due and owing under the Mortgage Loan (if both consent fees and Operating Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Operating Advisor Consulting Fees), provided that, to the extent required under the REMIC Provisions, payments or proceeds received with respect to the release of all or any portion of the Property (including following a condemnation) from the lien of the Mortgage and Mortgage Loan Documents must be allocated to reduce the principal balance of the Mortgage Loan in the manner permitted by such REMIC Provisions if, immediately following such release, the loan-to-value ratio of the Mortgage Loan exceeds 125% (based solely on real property and excluding any personal property and going concern value).

 

(b)       Collections by or on behalf of the Trust in respect of the Foreclosed Property (exclusive of amounts to be applied to the payment of the costs of operating, managing, leasing, maintaining and disposing of such Foreclosed Property) that are not required to be distributed to Companion Loan Holders pursuant to the Co-Lender Agreement shall be deemed to be applied in the following order of priority: first, as a recovery of any related and unreimbursed Advances, plus interest accrued thereon and, if applicable, unreimbursed Liquidation Expenses and unpaid Trust Fund Expenses; second, as a recovery of Nonrecoverable Advances or interest thereon to the extent previously reimbursed from principal collections with respect to the Mortgage Loan; third, as a recovery of accrued and unpaid interest on the Trust Notes that have not been the subject of a Monthly Payment Advance, to the extent of the excess of (i) accrued and unpaid interest on each outstanding Trust Note at the applicable Net Trust Note Rate (without giving effect to any increase in such Net Trust Note Rate required under the Mortgage Loan Agreement as a result of a Mortgage Loan Event of Default) through and including the end of the Mortgage Loan Interest Accrual Period in which such collections were received by or on behalf of the Trust, over (ii) the cumulative amount of the reductions (if any) in the amount of the interest portion of the related Monthly Payment Advances for the Trust Loan that have theretofore occurred under Section 3.23(a) in connection with Trust Appraisal Reduction Amounts (to the extent that collections have not been applied as a recovery of accrued and unpaid interest pursuant to clause fifth below on earlier dates) (such accrued and unpaid interest to be applied sequentially to accrued and unpaid interest on the Trust A Note and Trust B Note, in that order); fourth, as a recovery of principal due and payable on the Trust Loan, including by reason of acceleration of the Trust Loan following a Mortgage Loan Event of Default (or, if the Mortgage Loan has been liquidated, as a recovery of principal to the extent of its entire remaining unpaid principal balance), first, to the Trust A Note and then to the Trust B

 

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Note), in each case until their respective principal balances have been reduced to zero; fifth, as a recovery of accrued and unpaid interest on the Trust Loan to the extent of the cumulative amount of the reductions (if any) in the amount of the interest portion of the related Monthly Payment Advances for the Trust Loan that have theretofore occurred under Section 3.23(a) in connection with Trust Appraisal Reduction Amounts (to the extent that collections have not theretofore been applied as a recovery of accrued and unpaid interest pursuant to this clause fifth on earlier dates) (such accrued and unpaid interest to be applied sequentially to accrued and unpaid interest on the Trust A Note and Trust B Note, in that order); sixth, as a recovery of Yield Maintenance Premiums or Yield Maintenance Default Premiums on the Trust Loan; seventh, as a recovery of any Default Interest then deemed to be due and owing under the Mortgage Loan; and eighth, as a recovery of any other amounts deemed to be due and owing under the Mortgage Loan (if both consent fees and Operating Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Operating Advisor Consulting Fees).

 

(c)       All net present value calculations and determinations made under the Trust and Servicing Agreement with respect to the Mortgage Loan, the Trust Loan, any Companion Loan, the Property or Foreclosed Property (including for purposes of the definition of “Accepted Servicing Practices”) shall be made using a discount rate appropriate for the type of cash flows being discounted; namely (i) for principal and interest payments on the Mortgage Loan, the Trust Loan or such Companion Loan, or sale of the Mortgage Loan, the Trust Loan or such Companion Loan if it is in default, the higher of (1) the rate determined by the Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Loan Parties on similar debt of the Loan Parties as of such date of determination and (2) the Weighted Average Note Rate on the Mortgage Loan, the Trust Loan or such Companion Loan, as the case may be, based on its outstanding principal balance and (ii) for all other cash flows, including property cash flow, the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal).

 

2.       DECLARATION OF TRUST; ORIGINAL ISSUANCE OF CERTIFICATES

 

2.1.       Creation and Declaration of Trust; Conveyance of the Trust Loan. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, delivers, sets over, and otherwise conveys or causes to be conveyed in trust to the Trustee for the benefit of Certificateholders, without recourse (except to the extent otherwise provided herein and in the Mortgage Loan Documents), the Depositor’s right, title and interest, whether now owned or hereafter acquired, now existing or hereafter arising, wherever located, in and to all of the items referred to in the definition of “Trust Fund”, including without limitation (i) all rights and remedies of the Depositor under the Trust Loan Purchase Agreement, (ii) all right, title and interest of the Depositor in, to and under the Reserve Accounts, (iii) all right, title and interest of the Depositor in and to the Trust Loan as of the Closing Date and (iv) all other assets included or to be included in the Lower-Tier REMIC for the benefit of the Upper-Tier REMIC. Such transfer and assignment includes all payments of interest on the Trust Loan due and payable on and after the Cut-off Date and all principal payments received on or after the Cut-off Date.

 

Such sale, transfer and assignment include any related escrow accounts and any security interest under the Trust Loan (whether in real or personal property and whether tangible or intangible) and all related rights to payments made or required to be made to the Depositor by

 

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the Loan Parties or any other party under the Mortgage Loan Documents relating to the Trust Loan. Such sale, transfer and assignment further include all Mortgage Loan Documents relating to the Trust Loan (other than the Securitization Cooperation Provisions). Notwithstanding anything to the contrary herein, the rights of the Lender under the Securitization Cooperation Provisions shall be retained by the Trust Loan Sellers and shall not be part of the Trust Fund.

 

(b)          In connection with such sale, transfer and assignment, the Depositor does hereby deliver to, and deposit with the Custodian (i) the original Trust Notes (or if any Trust Note has been lost, a lost note affidavit with a customary indemnity provision, together with a copy of such Note), endorsed without recourse to the order of the Trustee in the following form: “Pay to the order of Wilmington Trust, National Association, as Trustee for the benefit of Holders of Aventura Mall Trust 2018-AVM, Commercial Mortgage Pass-Through Certificates, Series 2018-AVM without recourse or warranty except as set forth in the Trust and Servicing Agreement, dated as of June 29, 2018, among J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Wells Fargo Bank, National Association, as Servicer, CWCapital Asset Management LLC, as Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services, LLC, as Operating Advisor”, which Notes and all endorsements thereon shall show a complete chain of endorsement from the original payee(s) to the Trustee and (ii) on or before the fifth day after the Closing Date (the “Delivery Date”), the following documents or instruments with respect to the Mortgage Loan (collectively with the original Trust Notes required under clause (i) above, the “Mortgage File”), in each case executed by the parties thereto:

 

(A)       the original Mortgage Loan Agreement, including all amendments thereto;

 

(B)       an original recorded counterpart of the Mortgage or certified copies of the recorded counterparts of the Mortgage;

 

(C)       the original Assignment of Mortgage, in favor of the Trustee, and in a form that is complete and suitable for recording in the applicable jurisdiction in which the Property is located to “Wilmington Trust, National Association, as Trustee, for the benefit of Holders of Aventura Mall Trust 2018-AVM, Commercial Mortgage Pass-Through Certificates, Series 2018-AVM and the Companion Loan Holders, as their interests may appear” without recourse;

 

(D)       the original Environmental Indemnity;

 

(E)       a copy of the Management Agreement;

 

(F)       the original Assignment of Management Agreement;

 

(G)       the original Cash Management Agreement;

 

(H)       where applicable, a copy of each UCC-1 financing statement (and an original thereof shall have been sent for filing), together with a UCC-3 financing statement, in a form that is complete and suitable for filing, disclosing

 

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the assignment from the secured party named in such UCC-1 financing statement to the Trustee of the security interest in the personal property and other UCC collateral constituting security for repayment of the Mortgage Loan;

 

(I)         the lender’s title insurance policies obtained in connection with the origination of the Mortgage Loan (or marked, signed commitments to insure or pro forma title insurance policies), which may be an electronically issued policy, together with any endorsements thereto;

 

(J)        [RESERVED];

 

(K)       any other material written agreements related to the Mortgage Loan or any other loan documents executed by the Loan Parties or any other obligor or related party in connection with the origination of the Mortgage Loan or amendment thereof and any legal opinions delivered in connection with the origination of the Mortgage Loan;

 

(L)       all other instruments, if any, constituting additional security for the repayment of the Mortgage Loan;

 

(M)      an original of the Lockbox Agreement;

 

(N)       [RESERVED];

 

(O)       an original of the Guaranty;

 

(P)       [RESERVED];

 

(Q)       an original of the Co-Lender Agreement; and

 

(R)       any and all amendments, modifications and supplements to, and waivers related to, any of the foregoing.

 

The Depositor shall provide the Servicer promptly following the Closing Date, at its own expense, with copies of all such documents in its possession constituting part of the Mortgage File.

 

In addition, the Depositor shall deliver or cause to be delivered to the Servicer for its review, all required insurance policies or certificates issued by the insurers showing such insurance to be in effect on the Closing Date, together with proof of payment of premiums relating thereto (which may consist of such policies or certificates).

 

Each Assignment of Mortgage and UCC-3 financing statements to be filed in the appropriate filing offices or record depositories shall be filed or recorded, as applicable, by a designee of the Depositor, with instructions to return all such recorded documents, or other evidences of filing issued by the applicable governmental offices, to the Custodian, with a copy to the Servicer. In the event that any such document is determined to be defective or not to be in compliance with the requirements of the applicable filing office or recording depository, or if

 

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any such document is lost or returned unrecorded because of a defect therein, the Depositor shall promptly prepare a substitute document, and shall cause each such document to be duly submitted for filing or recording, as applicable. Notwithstanding anything to the contrary contained in this Section 2.1(b), in those instances where the public recording office retains the original Mortgage or Assignment of Mortgage, if applicable, after any has been recorded, the obligations of the Depositor hereunder and the obligations of the Trust Loan Sellers under the Trust Loan Purchase Agreement shall be deemed to have been satisfied upon delivery to the Custodian of a copy of such Mortgage, or Assignment of Mortgage, if applicable, certified by the public recording office to be a true and complete copy of the recorded original thereof.

 

The ownership of the Trust Notes, all other contents of the Mortgage File and the other assets in the Trust Fund shall be vested in the Trust or the Trustee for the benefit of the Certificateholders and (other than the Trust Notes) the Companion Loan Holders. The Depositor, the Servicer and the Special Servicer agree to take no action inconsistent with the Trustee’s ownership of the Trust Loan and to promptly indicate to all inquiring parties that the Trust Loan has been sold and to claim no ownership interest in the Trust Loan. All original documents relating to the Trust Loan that are not delivered to the Custodian are and shall be held by the Depositor, the Servicer or the Special Servicer, as the case may be, in trust for the benefit of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section 2.1(b) to be a part of a Mortgage File, such document shall be delivered promptly to the Custodian.

 

2.2.         Acceptance by the Trustee and the Certificate Administrator. (a) By its execution and delivery of this Agreement, the Trustee acknowledges the assignment to it by the Depositor of the Trust Fund in good faith without notice of adverse claims and the Custodian declares that it holds and will hold or will cause to be held such documents as are delivered to it constituting the Mortgage File (to the extent the documents constituting the Mortgage File are actually delivered to it) in trust, upon the conditions herein set forth, for the use and benefit of all present and future Certificateholders and the Companion Loan Holders.

 

(b)          The execution and delivery of this Agreement by the Certificate Administrator shall constitute certification by the Certificate Administrator of its acceptance of its appointment hereunder as Custodian and, in such capacity, that (i) the original Trust Notes specified in clause (i) of the definition of “Mortgage File” and all allonges thereto, if any, have been received by the Custodian; and (ii) such original Trust Notes have been reviewed by the Custodian and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrower), (B) appear to have been executed and (C) purport to relate to the Trust Loan. The Custodian agrees to review or cause to be reviewed the Mortgage File within thirty (30) days after the Closing Date, and to deliver to the Depositor, the Companion Loan Holders, the Trustee, the Certificate Administrator, the Directing Certificateholder (but only prior to the occurrence of a Consultation Termination Event), the Servicer and the Special Servicer a report certifying, subject to any exceptions found by it in such review, that (A) all documents referred to in Section 2.1(b) have been received, and (B) all documents have been executed, appear to be what they purport to be, purport to be recorded or filed (as applicable) and have not been torn, mutilated or otherwise defaced, and appear on their faces to relate to the Mortgage Loan. The Custodian shall have no responsibility for reviewing the Mortgage File except as expressly set forth in this Section 2.2(b). The

 

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Custodian shall be under no duty or obligation to inspect, review, or examine any such documents, instruments or certificates to independently determine that they are valid, genuine, enforceable, legally sufficient, duly authorized, or appropriate for the represented purpose, whether the text of any assignment or endorsement is in proper or recordable form (except to determine if the endorsement conforms to the requirements of Section 2.1(b)), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, to independently determine that any document has actually been filed or recorded in the appropriate office, that any document is other than what it purports to be on its face, or whether the title insurance policies relate to the Property.

 

If the Depositor cannot deliver, or cause to be delivered, any of the documents and/or instruments referred to in clauses (ii)(B), (C) and (I) of Section 2.1(b) with evidence of filing or recording thereon (if intended to be recorded or filed), solely because of a delay caused by the public filing or recording office where such document or instrument has been delivered for filing or recordation, the delivery requirements of Section 2.1 shall be deemed to have been satisfied on a provisional basis as of the Delivery Date as to such non-delivered document or instrument, and such non-delivered document or instrument shall be deemed to have been included in the Mortgage File, if a duplicate original or a photocopy of such non-delivered document or instrument (certified by the applicable public filing or recording office, the applicable title insurance company or any Trust Loan Seller to be a true and complete copy of the original thereof submitted for filing or recording) is delivered to the Custodian on or before the Delivery Date, and either the original of such non-delivered document or instrument, or a photocopy thereof (certified by the appropriate county recorder’s office, in the case of the documents and/or instruments referred to in clause (ii)(B), (C) and (I) of Section 2.1(b) to be a true and complete copy of the original thereof submitted for recording), with evidence of filing or recording thereon, is delivered to the Custodian within 180 days of the Closing Date (or within such longer period, not to exceed 18 months, after the Closing Date as the Custodian shall consent to so long as the Trust Loan Sellers provide a certification in writing to the Custodian no less often than every 90 days that they are attempting in good faith to obtain from the appropriate public filing office or county recorder’s office such original or photocopy).

 

(c)       Upon the first anniversary of the Closing Date, the Custodian shall deliver a final exception report as to any remaining documents that are not in the Mortgage File, whereupon, within 90 days, the Depositor shall either: (i) cause such document deficiency to be cured; or (ii) use commercially reasonable efforts to cause the Trust Loan Sellers to repurchase the Trust Loan pursuant to the Trust Loan Purchase Agreement if such exception is a Material Document Defect. Notwithstanding anything to the contrary herein, no Defect (except for a Defect with respect to the documents described in clause (i) of Section 2.1(b) and the documents described in clauses (ii)(B), (C) and (I) of Section 2.1(b)) or a Defect that relates to the Trust Loan being other than a Qualified Mortgage shall be considered to be a Material Document Defect unless the document with respect to which a Defect exists is required in connection with (A) an imminent enforcement of the mortgagee’s rights or remedies under the Trust Loan; (B) defending any claim asserted by the Borrower or third party with respect to the Trust Loan; (C) establishing the validity or priority of any lien on any collateral securing the Trust Loan; or (D) any immediate significant servicing obligations. The Trustee’s sole remedy against any Trust Loan Seller in connection with a Material Document Defect is to enforce the repurchase claim in accordance with the provisions of the Trust Loan Purchase Agreement.

 

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(d)       If the Servicer or the Special Servicer (i) receives a Repurchase Request (the receiving Servicer or Special Servicer, as applicable, the “Repurchase Request Recipient” with respect to such Repurchase Request); or (ii) receives any withdrawal of a Repurchase Request by the Person making such Repurchase Request (a “Repurchase Request Withdrawal”) or such a Repurchase Request or Repurchase Request Withdrawal is forwarded to the Servicer or Special Servicer by another party hereto, then the Repurchase Request Recipient shall deliver notice of such Repurchase Request or Repurchase Request Withdrawal (each, a “Rule 15Ga-1 Notice”) to the Depositor, the Companion Loan Holders and the Trust Loan Sellers, in each case within ten (10) Business Days from such party’s receipt thereof. Each Rule 15Ga-1 Notice may be delivered by electronic means.

 

Each Rule 15Ga-1 Notice shall include (i) the identity of the Property, (ii) the date the Repurchase Communication of the Repurchase Request or Repurchase Request Withdrawal is received and (iii) in the case of a Repurchase Request, (A) the identity of the Person making such Repurchase Request, (B) if known, the basis for the Repurchase Request (as asserted in the Repurchase Request) and (C) a statement from the Repurchase Request Recipient as to whether it currently plans to pursue such Repurchase Request.

 

A Repurchase Request Recipient shall not be required to provide any information in a Rule 15Ga-1 Notice protected by the attorney-client privilege or attorney work product doctrines. The Trust Loan Purchase Agreement will provide that (i) any Rule 15Ga-1 Notice provided pursuant to this Section 2.2(d) is so provided only to assist the Trust Loan Sellers and Depositor or their respective Affiliates to comply with Rule 15Ga-1 under the Exchange Act and any other requirement of law or regulation and (ii) (A) no action taken by, or inaction of, a Repurchase Request Recipient and (B) no information provided pursuant to this Section 2.2(d) by a Repurchase Request Recipient, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to the Trust Loan Purchase Agreement, including with respect to any Repurchase Request that is the subject of a Rule 15Ga-1 Notice.

 

In the event that the Depositor, the Trustee or the Certificate Administrator receives a Repurchase Communication of a Repurchase Request or a Repurchase Request Withdrawal, then such party shall promptly forward such Repurchase Communication of such Repurchase Request or Repurchase Request Withdrawal to the Servicer (or to the Special Servicer, if a Special Servicing Loan Event has occurred and is continuing), and include the following statement in the related correspondence: “This is a “Repurchase Request Withdrawal” under Section 2.2 of the Trust and Servicing Agreement relating to the Aventura Mall Trust 2018-AVM, Commercial Mortgage Pass-Through Certificates, Series 2018-AVM requiring action by you as the recipient of such Repurchase Request or Repurchase Request Withdrawal thereunder.” Upon receipt of such Repurchase Communication of such Repurchase Request or Repurchase Request Withdrawal by the Servicer or the Special Servicer, as applicable, such party shall be deemed to be the Repurchase Request Recipient of such Repurchase Communication of such Repurchase Request or Repurchase Request Withdrawal, and such party shall comply with the procedures set forth in this Section 2.2(d) with respect to such Repurchase Request or Repurchase Request Withdrawal.

 

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If the Depositor, the Trustee or the Certificate Administrator receives notice or has knowledge of a withdrawal of a Repurchase Request Withdrawal of which notice has been previously received or given, and such notice was not received from or copied to the Servicer or the Special Servicer, then such party shall promptly give notice of such Repurchase Request Withdrawal to the Servicer or the Special Servicer, as applicable.

 

In the event that the Mortgage Loan is repurchased pursuant to Section 2.8, the Servicer or Special Servicer shall promptly notify the Depositor, the Certificate Administrator and the Trustee of such repurchase.

 

2.3.         Representations and Warranties of the Trustee. (a) Wilmington Trust, National Association, as Trustee, hereby represents and warrants to the other parties hereto that as of the Closing Date:

 

(i)           the Trustee is a national banking association, duly organized, validly existing, and is in good standing under the laws of the United States; the Trustee possesses and shall continue to possess all requisite authority, power, licenses, permits, franchise and approvals to conduct its business and to execute, deliver and comply with its obligations under this Agreement;

 

(ii)          the execution and delivery of this Agreement by the Trustee and its performance and compliance with the terms of this Agreement will not violate the Trustee’s articles of association or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Trustee is a party or which may be applicable to the Trustee or any of its assets;

 

(iii)         except to the extent that the laws of any jurisdiction in which a part of the Trust Fund may be located require that a co-trustee or separate trustee be appointed to act with respect to such property as contemplated by Section 8.10, the Trustee has the full power and authority to enter into and consummate the transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

(iv)         this Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Trustee, enforceable against it in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, conservatorship, reorganization, receivership, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);

 

(v)          the Trustee is not in violation of, and the execution and delivery of this Agreement by the Trustee and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order, law or regulation of any federal, state, municipal or governmental agency of or in the United States of America having jurisdiction, which violation would have

 

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consequences that would materially and adversely affect the condition (financial or other) or operations of the Trustee or its properties or might have consequences that would materially affect the performance of its duties hereunder or thereunder;

 

(vi)         no consent, approval, authorization or order of, or registration of filing with, or notice to any court, governmental or regulatory agency or body, is required for the execution, delivery and performance by the Trustee of this Agreement or if required, such approval has been obtained prior to the Closing Date;

 

(vii)        no litigation is pending or, to the best of the Trustee’s knowledge, threatened against the Trustee which would prohibit its entering into or materially and adversely affect its ability to perform its obligations under this Agreement;

 

(viii)       the Trustee is covered by errors and omissions insurance coverage which is in full force and effect and/or otherwise complies with the requirements of Section 8.6(c); and

 

(ix)          to its actual knowledge, the Trustee is not Risk Retention Affiliated with the Third Party Purchaser.

 

(b)          The respective representations and warranties of the Trustee set forth in this Section 2.3 shall survive until the termination of this Agreement, and shall inure to the benefit of the other parties hereto and the Certificateholders.

 

2.4.         Representations and Warranties of the Certificate Administrator. (a) Wells Fargo Bank, National Association, as Certificate Administrator, hereby represents and warrants to the other parties hereto and for the benefit of the Certificateholders and the Companion Loan Holders as of the Closing Date:

 

(i)           the Certificate Administrator is a national banking association, duly organized, validly existing, and is in good standing under the laws of the United States; the Certificate Administrator possesses and shall continue to possess all requisite authority, power, licenses, permits, franchise and approvals to conduct its business and to execute, deliver and comply with its obligations under this Agreement;

 

(ii)          the execution and delivery of this Agreement by the Certificate Administrator and its performance and compliance with the terms of this Agreement will not violate the Certificate Administrator’s articles of association or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Certificate Administrator is a party or which may be applicable to the Certificate Administrator or any of its assets;

 

(iii)         the Certificate Administrator has the full power and authority to enter into and consummate the transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

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(iv)         this Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Certificate Administrator, enforceable against it in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, conservatorship, reorganization, receivership, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);

 

(v)          the Certificate Administrator is not in violation of, and the execution and delivery of this Agreement by the Certificate Administrator and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order, law or regulation of any federal, state, municipal or governmental agency of or in the United States of America having jurisdiction, which violation would have consequences that would materially and adversely affect the condition (financial or other) or operations of the Certificate Administrator or its properties or might have consequences that would materially affect the performance of its duties hereunder or thereunder;

 

(vi)         no consent, approval, authorization or order of, or registration of filing with, or notice to any court, governmental or regulatory agency or body, is required for the execution, delivery and performance by the Certificate Administrator of this Agreement or if required, such approval has been obtained prior to the Closing Date;

 

(vii)        the Certificate Administrator is covered by errors and omissions insurance coverage which is in full force and effect and/or otherwise complies with the requirements of Section 8.6(b);

 

(viii)       no litigation is pending or, to the best of the Certificate Administrator’s knowledge, threatened against the Certificate Administrator which would prohibit its entering into or materially and adversely affect its ability to perform its obligations under this Agreement; and

 

(ix)          to its actual knowledge, the Certificate Administrator is not Risk Retention Affiliated with the Third Party Purchaser.

 

(b)          The respective representations and warranties of the Certificate Administrator set forth in this Section 2.4 shall survive until the termination of this Agreement, and shall inure to the benefit of the other parties hereto and the Certificateholders.

 

2.5.         Representations and Warranties of the Servicer. (a) Wells Fargo Bank, National Association, as Servicer, hereby represents and warrants to the other parties hereto that as of the Closing Date:

 

(i)           it is a national banking association duly organized, validly existing, and in good standing under the laws of the United States; it is, and throughout the term of this Agreement shall remain, duly authorized and qualified to transact business in the jurisdiction where the Property is located to the extent required by applicable law and necessary to ensure the enforceability of the Trust Loan and the Companion Loans in

 

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accordance with the terms thereof and hereof; it possesses and shall continue to possess all requisite authority, power, licenses, permits, franchise, and approvals to conduct its business and to execute, deliver, and comply with its obligations under this Agreement;

 

(ii)          the execution and delivery of this Agreement and its performance of and compliance with the terms hereof in the manner contemplated by this Agreement will not violate its articles of association or by-laws, or any other material instrument governing its operations, or any laws, regulations, orders or decrees of any governmental authority applicable to it and will not constitute a default (or any event which, with notice or lapse of time or both, would constitute a default) under any material contract, agreement, or other instrument to which it is a party or which may be applicable to any of its assets, which violation or default would have consequences that would materially and adversely affect its financial condition or operations or its properties taken as a whole or its ability to perform its obligations hereunder, or materially impair the ability of the Trust Fund to realize on the Collateral;

 

(iii)         this Agreement constitutes its valid, legal, and binding obligation enforceable against it in accordance with its terms, subject to bankruptcy and receivership laws and other similar laws of general application affecting rights of creditors and subject to the application of the rules of equity, including those respecting the availability of specific performance;

 

(iv)         it has the full power and authority to enter into and consummate the transactions contemplated by this Agreement; this Agreement has been duly executed and delivered by it;

 

(v)          all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by it have been obtained or made;

 

(vi)         there is no pending action, suit or proceeding, arbitration or governmental investigation against it, the outcome of which, in its reasonable judgment, could reasonably be expected to prohibit it from entering into this Agreement or materially and adversely affect its ability to perform its obligations under this Agreement;

 

(vii)        it has errors and omissions insurance and fidelity bond coverage which is in full force and effect or is self-insuring with respect to such risks, which in either case, complies with the requirements of Section 3.11 hereof; and

 

(viii)       to its actual knowledge, the Servicer is not Risk Retention Affiliated with the Third Party Purchaser.

 

(b)          The representations and warranties of the Servicer set forth in this Section 2.5 shall survive until termination of this Agreement, and shall inure to the benefit of the parties hereto and the Certificateholders.

 

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2.6.       Representations and Warranties of the Special Servicer. (a) CWCapital Asset Management LLC, as Special Servicer, hereby represents and warrants to the other parties hereto that as of the Closing Date:

 

(i)           it is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware; it is, and throughout the term of this Agreement shall remain, duly authorized and qualified to transact business in the jurisdiction where the Property is located to the extent required by applicable law and necessary to ensure the enforceability of the Trust Loan and the Companion Loans in accordance with the terms thereof and hereof; it possesses and shall continue to possess all requisite authority, power, licenses, permits, franchise, and approvals to conduct its business and to execute, deliver, and comply with its obligations under this Agreement;

 

(ii)          the execution and delivery of this Agreement and its performance of and compliance with the terms hereof in the manner contemplated by this Agreement will not violate its certificate of organization and limited liability company operating agreement, or any other material instrument governing its operations, or any laws, regulations, orders or decrees of any governmental authority applicable to it and will not constitute a default (or any event which, with notice or lapse of time or both, would constitute a default) under any material contract, agreement, or other instrument to which it is a party or which may be applicable to any of its assets, which violation or default would have consequences that would materially and adversely affect its financial condition or operations or its properties taken as a whole or its ability to perform its obligations hereunder, or materially impair the ability of the Trust Fund to realize on the Collateral;

 

(iii)         this Agreement constitutes its valid, legal, and binding obligation enforceable against it in accordance with its terms, subject to bankruptcy and receivership laws and other similar laws of general application affecting rights of creditors and subject to the application of the rules of equity, including those respecting the availability of specific performance;

 

(iv)         it has the full power and authority to enter into and consummate the transactions contemplated by this Agreement; this Agreement has been duly executed and delivered by it;

 

(v)          all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by it have been obtained or made;

 

(vi)         there is no pending action, suit or proceeding, arbitration or governmental investigation against it, the outcome of which, in its reasonable judgment, could reasonably be expected to prohibit it from entering into this Agreement or materially and adversely affect its ability to perform its obligations under this Agreement; and

 

(vii)        it has errors and omissions insurance and fidelity bond coverage which is in full force and effect or is self-insuring with respect to such risks, which in either case, complies with the requirements of Section 3.11 hereof.

 

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(b)          The representations and warranties of the Special Servicer set forth in this Section 2.6 shall survive until termination of this Agreement, and shall inure to the benefit of the parties hereto and the Certificateholders.

 

2.7.       Representations and Warranties of the Depositor. (a) The Depositor hereby represents and warrants to the other parties hereto that as of the Closing Date:

 

(i)           the Depositor is a Delaware corporation, duly organized, validly existing and in good standing under the laws of Delaware, with full power and authority to own its property, to carry on its business as presently conducted, to enter into and perform its obligations under this Agreement, and to create the trust pursuant hereto;

 

(ii)          the execution, delivery and performance of this Agreement by the Depositor have been duly authorized by all necessary corporate action on the part of the Depositor; neither the execution, delivery and performance of this Agreement, nor the consummation of the transactions herein contemplated, nor the compliance with the provisions hereof, will conflict with or result in a breach of, or constitute a default under (A) any of the provisions of any law, rule, regulation, judgment, decree or order binding on the Depositor, (B) the organizational documents of the Depositor, or (C) the terms of any indenture or other agreement or instrument to which the Depositor is a party or by which it is bound or any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it;

 

(iii)         the execution, delivery and performance by the Depositor of this Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;

 

(iv)         this Agreement has been duly executed and delivered by the Depositor and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Depositor enforceable against it in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);

 

(v)          there are no actions, suits or proceedings pending or, to the best of the Depositor’s knowledge, threatened or likely to be asserted against or affecting the Depositor, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Depositor will be determined adversely to the Depositor and will, if determined adversely to the Depositor, materially and adversely affect its ability to perform its obligations under this Agreement;

 

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(vi)         the Depositor is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default would materially and adversely affect the ability of the Depositor to perform its obligations hereunder;

 

(vii)        other than the actions taken pursuant to this Agreement, the Depositor has taken no action to impair or encumber the title to the Trust Loan or to subject it to any offsets, defenses or counterclaims during the Depositor’s ownership thereof;

 

(viii)       the Depositor is accounting for the transfer of the Trust Loan as a sale under generally accepted accounting principles and for federal income tax purposes;

 

(ix)          the Depositor is not, and, after giving effect to the transfers contemplated under this Agreement, will not be, insolvent; and

 

(x)           the Depositor has not transferred the Trust Loan with an intent to hinder, delay or defraud its creditors.

 

(b)          The representations and warranties of the Depositor set forth in this Section 2.7 shall survive until termination of this Agreement, and shall inure to the benefit of the Certificateholders, the Trustee, the Certificate Administrator, the Servicer and the Special Servicer.

 

(c)          Neither the Depositor nor any of its Affiliates shall insure or guarantee distributions on the Certificates. Subject to Section 2.9(a) and (b), neither the Certificateholders, the Trustee, or the Certificate Administrator on their behalf shall have any rights or remedies against the Depositor for any losses or other claims in connection with the Certificates or the Trust Loan.

 

2.8.       Representations and Warranties of the Operating Advisor.

 

(a) The Operating Advisor hereby represents and warrants to the other parties hereto that as of the Closing Date:

 

(i)           it is a limited liability company, duly organized, validly existing and in good standing under the laws of New York, and the Operating Advisor is in compliance with the laws of the State in which the Property is located to the extent necessary to perform its obligations under this Agreement;

 

(ii)          the execution and delivery of this Agreement by the Operating Advisor, and the performance and compliance with the terms of this Agreement by the Operating Advisor, do not (A) violate the Operating Advisor’s organizational documents, (B) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets, or (C) violate any law, rule, regulation, order, judgment or decree to which the Operating Advisor or its property is subject, which, in the case of either (B) or (C), is likely to

 

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materially and adversely affect either the ability of the Operating Advisor to perform its obligations under this Agreement or its financial condition;

 

(iii)         the Operating Advisor has the full power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

(iv)         this Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid, legal and binding obligation of the Operating Advisor, enforceable against the Operating Advisor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

 

(v)          the Operating Advisor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Operating Advisor’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Operating Advisor to perform its obligations under this Agreement or the financial condition of the Operating Advisor;

 

(vi)         the Operating Advisor has errors and omissions insurance coverage that is in full force and effect or is self-insuring with respect to such risks, which in either case complies with the requirements of Section 3.11 hereof;

 

(vii)        no litigation is pending or, to the best of the Operating Advisor’s knowledge, threatened against the Operating Advisor, which would prohibit the Operating Advisor from entering into this Agreement or, in the Operating Advisor’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Operating Advisor to perform its obligations under this Agreement;

 

(viii)       no consent, approval, authorization or order of any court or governmental agency or body is required under federal or state law for the execution, delivery and performance by the Operating Advisor of, or compliance by the Operating Advisor with, this Agreement or the consummation of the transactions of the Operating Advisor contemplated by this Agreement, except for any consent, approval, authorization or order which has been obtained or can be obtained prior to the actual performance by the Operating Advisor of its obligations under this Agreement, or which, if not obtained would not have a materially adverse effect on the ability of the Operating Advisor to perform its obligations hereunder; and

 

(ix)          the Operating Advisor is an Eligible Operating Advisor.

 

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2.9.       Representations and Warranties Contained in the Trust Loan Purchase Agreement. (a) Upon discovery by the Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Operating Advisor of (i) a Material Breach of any representation and warranty set forth in Exhibit A to the Trust Loan Purchase Agreement, which representation and warranty was made by the Trust Loan Sellers in the Trust Loan Purchase Agreement and has been assigned to the Trustee pursuant to Section 2.1 hereof, or (ii) a Material Document Defect, such Person shall give prompt notice thereof to the other parties hereto and the Trust Loan Sellers, and upon receipt or delivery, as applicable, of such notice the Servicer or Special Servicer, as applicable, shall use commercially reasonable efforts to cause the Trust Loan Sellers, to the extent obligated to do so under the Trust Loan Purchase Agreement, to cure such default or defect or repurchase the Trust Loan (or a portion of the Trust Loan in connection with a Material Breach or a Material Document Defect) under the terms of and within the time period specified by the Trust Loan Purchase Agreement, it being understood and agreed that none of such Persons has an obligation to conduct any investigation with respect to such matters; provided, that within ninety (90) days of (1) the receipt by the Trust Loan Seller of notice of such Material Document Defect or Material Breach, as the case may be, or (2) the discovery of such Defect or breach by any party hereto, in the case of a Defect or breach that would cause the Trust Loan not to be a “qualified mortgage” within the meaning of Code Section 860G(a)(3) (but without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) (a “Qualified Mortgage”)), will be a Material Breach or Material Document Defect, respectively, and with respect to any such Material Breach or Material Document Defect, such Trust Loan Seller shall either (x) repurchase its respective Loan Percentage Interest in the Trust Loan evidenced by its respective Trust Notes at the Repurchase Price, (y) promptly cure such Material Document Defect or Material Breach, as the case may be, in all material respects; provided, that in the case of this clause (y), any such cure that is of a monetary nature shall be made by the Trust Loan Sellers on a pro rata basis in accordance with their respective Loan Percentage Interests and any Trust Loan Seller that pays more than such pro rata share shall be entitled to contribution from the other Trust Loan Sellers or (z) if such Material Document Defect or Material Breach is not related to the Trust Loan not being a “qualified mortgage” within the meaning of Code Section 860G(a)(3), indemnify the Trust in respect of its Loan Percentage Interest in the Mortgage Loan for the losses directly related to such Material Document Defect or Material Breach, subject to receipt of Rating Agency Confirmation from each Rating Agency with respect to such action; provided, that in the event that such Material Document Defect or Material Breach does not cause the Trust Loan to be other than a “qualified mortgage” as described in Code Section 860G(a)(3) and is capable of being cured but not within such 90-day period if such Trust Loan Seller has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, such Trust Loan Seller will have an additional 90 days to complete such cure, or failing such cure, to repurchase the Trust Loan (or allocable portion thereof) or indemnify the Trust in an amount equal to its Loan Percentage Interest in the Repurchase Price; provided, further, that with respect to such additional 90-day period, such Trust Loan Seller shall have delivered an officer’s certificate to the Trustee, the Certificate Administrator, the Operating Advisor and the Servicer setting forth the reason why such Material Document Defect or Material Breach is not capable of being cured within the initial 90-day period and what actions such Trust Loan Seller is pursuing in connection with the cure thereof and stating that such Trust Loan Seller anticipates that such Material Document Defect or Material Breach will be cured within the additional 90-day period. For the avoidance of doubt,

 

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no Liquidation Fee will be payable by any Trust Loan Seller in connection with a repurchase of its respective Loan Percentage Interest of the Trust Loan due to a Material Breach or a Material Document Defect if made in accordance with and within the 90 day period set forth in the Trust Loan Purchase Agreement (including any applicable extended period).

 

(b)       Upon receipt by the Servicer from any Trust Loan Seller of the Repurchase Price (or a portion thereof) for the Trust Loan (or any portion thereof), the Servicer shall deposit such amount in the Collection Account, and the Custodian shall, upon receipt of a certificate of a Servicing Officer certifying as to (1) the receipt by the Servicer of the Repurchase Price (or a portion thereof) and the deposit of the Repurchase Price (or a portion thereof) into the Collection Account pursuant to this Section 2.8(b) and (2) if applicable, compliance with the conditions set forth in clauses (c) and (d) below, (i) release or cause to be released to the designees of the Trust Loan Sellers the Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty (except that the Trust Loan is owned by the Trust and is being sold free and clear of liens and encumbrances), as shall be prepared by such designee to vest in such designee the Trust Loan released pursuant hereto and the Certificate Administrator, the Trustee, the Servicer and the Special Servicer shall have no further responsibility with regard to the Mortgage File and (ii) release or cause to be released to the Trust Loan Sellers any escrow payments and reserve funds (or portions thereof) held by the Trustee, or on the Trustee’s behalf, in respect of the Trust Loan (or portions thereof).

 

(c)       To the extent that all of the Trust Loan Sellers do not repurchase all of their respective Trust Notes pursuant to the terms of the Trust Loan Purchase Agreement, (i) the Mortgage Loan shall continue to be serviced by the Servicer and, if applicable, the Special Servicer, in accordance with the terms of this Agreement on behalf of each Repurchasing Seller, the Certificateholders and the Companion Loan Holders as a collective whole, and the Servicer or the Special Servicer, as applicable, shall be the sole representative of the Lender in connection with any enforcement, bankruptcy or other proceeding, (ii) the Trustee shall remain the mortgagee of record with respect to the Mortgage, (iii) the Certificate Administrator Fee, Operating Advisor Fee, Servicing Fee, Special Servicing Fee and/or the CREFC® Intellectual Property Royalty License Fee and any Liquidation Fee or Work-out Fee with respect to the Trust Loan, the Companion Loans or the Mortgage Loan shall continue to be calculated based on the entire outstanding principal amount of the Trust Loan, the Companion Loans or the Mortgage Loan, as applicable, (iv) the Certificate Administrator, as Custodian, shall retain all portions of the Mortgage File other than the Repurchased Notes repurchased by the Repurchasing Seller, (v) the Repurchasing Seller shall be entitled to remittances on or prior to the Distribution Date of its allocable share of all amounts that would otherwise be available for distribution on such Distribution Date pursuant to Section 3.29(b) hereof to the Holders of the Certificates repurchased by the Repurchasing Seller (other than any amounts in respect of any Monthly Payment Advance) and such amounts shall be wired in accordance with the directions provided to the Servicer by such Trust Loan Seller at least 10 Business Days prior to the related Distribution Date, (vi) each Repurchasing Seller shall be entitled to receive any and all reports and have access to any and all information that a Certificateholder would otherwise have under the terms of this Agreement upon its submission of an Investor Certification to the Certificate Administrator, (vii) no amendment may be made to this Agreement that would materially and adversely affect the rights of any Repurchasing Seller in respect of the Repurchased Notes

 

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repurchased by the Repurchasing Seller without the consent of such Repurchasing Seller, (viii) if (in accordance with this Agreement) the Special Servicer elects to sell the Trust’s share of the Trust Loan following a default thereunder, the Special Servicer must sell the entire Mortgage Loan on behalf of the Trust Loan Seller repurchasing its interest therein, the Certificateholders and the Companion Loan Holders as a collective whole (taking into account the interests of each of the holders of the Notes and the subordination of the B Notes to the A Notes), (ix) to the extent the Trustee holds record or legal title to any Mortgage File document that relates to any Repurchased Notes repurchased by the Repurchasing Seller as described in this Section 2.8(c), the Trustee shall hold such title in trust for the use and benefit of the Trust and the related Trust Loan Seller collectively, and (x) to the extent this Agreement refers to the “Mortgage File,” such “Mortgage File” shall be construed to mean the Mortgage File for the entire Trust Loan (except that references to any Note in favor of a Repurchasing Seller shall be construed to instead refer to a photocopy of such Note). Neither the Servicer nor the Trustee shall make any Monthly Payment Advance with respect to any Repurchased Notes repurchased by the Repurchasing Seller.

 

(d)          In the event that the Trust Loan or a portion thereof is repurchased pursuant to this Section 2.8, the Servicer or Special Servicer, as applicable, shall promptly notify the Depositor of such repurchase.

 

2.10.       Execution and Delivery of Certificates; Issuance of Uncertificated Lower-Tier Interests. The Trustee acknowledges the assignment in trust by the Depositor to the Trustee of the Trust Notes and other assets comprising the Trust Fund. Concurrently with such assignment and delivery and in exchange therefor, (i) the Certificate Administrator acknowledges the issuance of (x) the Uncertificated Lower-Tier Interests to the Depositor and (y) the Class LT-R Interest, in exchange for the Trust Loan, receipt of which is hereby acknowledged, (ii) immediately thereafter, the Certificate Administrator acknowledges (x) the assignment by the Depositor to the Trustee of the Uncertificated Lower-Tier Interests, and in exchange therefor that it (y) has executed and has authenticated and delivered to or upon the order of the Depositor, the Regular Certificates and has issued the Class UT-R Interest, and (z) has executed and has authenticated and delivered to or upon the order of the Depositor, the Class R Certificates, representing the Class LT-R and Class UT-R Interests, and (iii) the Depositor hereby acknowledges the receipt by it or its designees, of the Regular Certificates in authorized denominations and the Class UT-R Interest evidencing the entire beneficial ownership of the Upper-Tier REMIC.

 

2.11.       Miscellaneous REMIC Provisions. (a) The Class A, Class B, Class C, Class D and Class HRR Certificates are hereby designated as the “regular interests” in the Upper-Tier REMIC within the meaning of Section 860G(a)(1) of the Code. The Class UT-R Interest, represented by the Class R Certificates, is hereby designated as the sole class of “residual interests” in the Upper-Tier REMIC within the meaning of Section 860G(a)(2) of the Code.

 

(b)          The Class LA, Class LB, Class LC, Class LD, Class LE and Class LHRR Uncertificated Interests are hereby designated as the “regular interests” in the Lower-Tier REMIC within the meaning of Section 860G(a)(1) of the Code, and the Class LT-R Interest,

 

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represented by the Class R Certificates, is hereby designated as the sole class of “residual interests” in the Lower-Tier REMIC within the meaning of Section 860G(a)(2) of the Code.

 

2.12.       Resignation Upon Prohibited Risk Retention Affiliation.

 

Upon the occurrence of (i) a Servicing Officer of the Servicer or a Responsible Officer of the Certificate Administrator or the Trustee, as applicable, obtaining actual knowledge that the Servicer, the Certificate Administrator or the Trustee, as applicable, is or has become a Risk Retention Affiliate of the Third Party Purchaser (an “Impermissible TPP Affiliate”), (ii) the Servicer, the Certificate Administrator, or the Trustee receiving written notice by any other party to this Agreement, the Third Party Purchaser, any Trust Loan Seller, or any Initial Purchaser that the Servicer, the Certificate Administrator or the Trustee, as applicable, is or has become an Impermissible TPP Affiliate, or (iii) the Operating Advisor obtaining actual knowledge that it is or has become a Risk Retention Affiliate of the Third Party Purchaser or any other party to this Agreement (an “Impermissible Operating Advisor Affiliate”; and either of an Impermissible TPP Affiliate and an Impermissible Operating Advisor Affiliate being an “Impermissible Risk Retention Affiliate”), then in each such case the Impermissible Risk Retention Affiliate shall be required to promptly notify the Retaining Sponsor and the other parties to this Agreement and resign in accordance with Section 3.26(m), Section 6.4 or Section 8.7. The resigning Impermissible Risk Retention Affiliate shall be required to bear all reasonable out-of-pocket costs and expenses of each other party to this Agreement, the Trust and each Rating Agency in connection with such resignation as and to the extent required under this Agreement; provided, however, if the affiliation causing an Impermissible Risk Retention Affiliate is the result of the Third Party Purchaser acquiring an interest in such Impermissible Risk Retention Affiliate or an affiliate of such Impermissible Risk Retention Affiliate, then such costs and expenses shall be an expense of the Trust.

 

3.       ADMINISTRATION AND SERVICING OF THE MORTGAGE Loan

 

3.1.       Servicer to Act as the Servicer; Special Servicer to Act as the Special Servicer. The Servicer and the Special Servicer, each as an independent contractor, shall service and administer the Mortgage Loan and administer Foreclosed Property solely on behalf of the Trust and the Companion Loan Holders, in the best interest of, and for the benefit of, all the Certificateholders and the Companion Loan Holders as a collective whole (taking into account the subordination of the B Note to the A Notes) (as determined by the Servicer or the Special Servicer, as applicable, in the exercise of its good faith and reasonable judgment), in accordance with applicable law (including the REMIC Provisions), the terms of this Agreement, the Mortgage Loan Documents, the Co-Lender Agreement and, to the extent consistent with the foregoing, the following standards: (i) the higher of (a) the same manner in which and with the same care, skill, prudence and diligence with which the Servicer or the Special Servicer, as applicable, services and administers similar loans and administers foreclosed properties for other third-party portfolios, giving due consideration to customary and usual standards of practice of prudent institutional commercial mortgage lenders in servicing their own loans and administering their own foreclosed properties, or (b) with the care, skill, prudence and diligence the Servicer or the Special Servicer, as applicable, uses for loans which it owns or for foreclosed properties it owns and administers; (ii) with a view to the timely collection of (a) all scheduled payments of principal and interest under the Mortgage Loan or, if the Mortgage Loan comes into

 

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and continues in default and if no satisfactory arrangements can be made for the collection of the delinquent payments, the maximization of the recovery on the Mortgage Loan to the Certificateholders and the Companion Loan Holders as a collective whole (taking into account the interests of each of the holders of the Notes and the subordination of the B Note to the A Notes) on a net present value basis and (b) the payment of Trust Fund Expenses that are reimbursable or payable by the Loan Parties under the Mortgage Loan Agreement; and (iii) without regard to:

 

(A)       any relationship that the Servicer or the Special Servicer or any Affiliate thereof may have with any Borrower Affiliate, the Trust Loan Seller, any Companion Loan Holder, the Depositor or any of their respective Affiliates;

 

(B)       the ownership of any Certificate or any Companion Loan or any interest in a Companion Loan or other indebtedness secured by the Property or any certificate backed by a Companion Loan by the Servicer or the Special Servicer or by any Affiliate thereof;

 

(C)       in the case of the Servicer, its obligation to make Advances;

 

(D)       the right of the Servicer or the Special Servicer or any Affiliate thereof to receive reimbursement of costs, compensation or other fees (other than Advances), or the sufficiency of any compensation payable to it under this Agreement or with respect to any particular transaction; or

 

(E)       the ownership, servicing or management for others of any other loans or properties by the Servicer or the Special Servicer, as applicable, or any Affiliate of the foregoing.

 

Subject to the above-described servicing standards (hereinafter referred to as “Accepted Servicing Practices”) and the terms of this Agreement and of the Mortgage Loan Documents, the Servicer and the Special Servicer each shall have full power and authority, acting alone and/or through (in the case of the Servicer) one or more sub-servicers as provided in Section 3.2, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. The Servicer and the Special Servicer shall service and administer the Mortgage Loan in accordance with applicable state and federal law. At the written request of the Servicer or the Special Servicer, as applicable, accompanied by the form of power of attorney or other documents being requested, the Trustee shall furnish to the Servicer or the Special Servicer any powers of attorney and other documents necessary or appropriate to enable such Servicer or the Special Servicer to carry out its servicing and administrative duties hereunder, and the Trustee shall not be held responsible (and shall be indemnified by the Servicer or the Special Servicer) for any negligence or misuse by the Servicer or the Special Servicer in its uses of any such powers of attorney or other document. Notwithstanding anything contained herein to the contrary, the Servicer and the Special Servicer shall not without the Trustee’s and the Certificate Administrator’s prior written consent: (i) initiate any action, suit or proceeding solely under the Trustee’s or the Certificate Administrator’s name without indicating the representative capacity of the Servicer or the

 

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Special Servicer, as applicable, or (ii) take any action with the intent to, and which actually does cause, the Trustee or the Certificate Administrator to be registered to do business in any state.

 

The liability of each of the Servicer and the Special Servicer, as applicable, for actions and omissions in its capacity as Servicer and the Special Servicer, respectively, hereunder is limited as provided herein (including, without limitation, pursuant to Section 6.3). Nothing contained in this Agreement shall be construed as an express or implied guarantee by the Servicer or the Special Servicer of the collectibility of the Trust Loan and the Companion Loans. In connection with any ground lease, the Servicer shall promptly, and in any event within 60 days following the later of receipt of the applicable ground lease and the Closing Date, notify the related ground lessor of the transfer of the Trust Loan to the Trust Fund pursuant to this Agreement and inform such ground lessor that any notices of default under such ground lease should thereafter be forwarded to the Servicer.

 

Except as otherwise expressly set forth in this Agreement, Wells Fargo Bank, National Association, acting in any particular capacity hereunder will not be deemed to be imputed with knowledge of (a) Wells Fargo Bank, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or (b) Wells Fargo Bank, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Wells Fargo Bank, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers; provided, however, the knowledge of employees performing special servicing functions shall not be imputed to employees performing master servicing functions, and the knowledge of employees performing master servicing functions shall not be imputed to employees performing special servicing functions.

 

3.2.       Sub-Servicing Agreements. (a) The Special Servicer shall not engage any Sub-Servicer or enter into any sub-servicing agreement. The Servicer, at its own expense without a right of reimbursement under this Agreement or otherwise, may enter into sub-servicing agreements with sub-servicers for the servicing and administration of the Trust Loan and the Companion Loans, provided that (i) any such sub-servicing agreement shall be upon such terms and conditions as are not inconsistent with this Agreement and as the Servicer and the sub-servicer have agreed, and (ii) no sub-servicer retained by the Servicer shall grant any modification, waiver, or amendment to the Mortgage Loan Documents without the approval of the Servicer. References in this Agreement to actions taken or to be taken, and limitations on actions permitted to be taken, by the Servicer in servicing the Mortgage Loan include actions taken or to be taken by a sub-servicer on behalf of the Servicer. Each sub-servicer shall be (i) authorized to transact business and licensed in the applicable state(s), if, and to the extent, required by applicable law to enable the sub-servicer to perform its obligations under the applicable sub-servicing agreement, and (ii) qualified to perform its obligations under the applicable sub-servicing agreement. For purposes of this Agreement, the Servicer shall be deemed to have received any amount when the sub-servicer receives such amount, irrespective of whether such amount is remitted to the Servicer for deposit in the Collection Account, any Cash Management Account, any Reserve Account or the Distribution Account, and actions taken by the sub-servicer shall be deemed to be actions of the Servicer. The Servicer shall notify the

 

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Trustee, the Certificate Administrator, the Operating Advisor, the Borrower and the Depositor in writing promptly upon the appointment of any sub-servicer and promptly furnish the Trustee, upon its request, with a copy of the sub-servicing agreement. No sub-servicer shall be permitted to enter into any sub-servicing agreement with other sub-servicers without the prior written consent of the Servicer.

 

(b)       Notwithstanding any sub-servicing agreement, the Servicer shall remain obligated and liable to the Trustee and the Certificateholders for the servicing and administering of the Trust Loan and the Companion Loans in accordance with the provisions of Section 3.1 without diminution of such obligation or liability by virtue of such sub-servicing agreement, or by virtue of indemnification from a sub-servicer, and to the same extent and under the same terms and conditions as if the Servicer alone were servicing and administering the Mortgage Loan.

 

(c)       Any sub-servicing agreement entered into by the Servicer shall provide that it may be assumed or terminated by (i) the Trustee if the Trustee has assumed the duties of the Servicer or if the Servicer is otherwise terminated pursuant to the terms of this Agreement, or (ii) a successor Servicer if such successor Servicer has assumed the duties of the Servicer, without cost or obligation to the Trustee, the successor Servicer, the Trust or the Trust Fund.

 

(d)       Any sub-servicing agreement, and any other transactions or services relating to the Mortgage Loan involving a sub-servicer, shall be deemed to be between the Servicer and such sub-servicer alone, and the Trustee, the Certificate Administrator, the Depositor, the Trust and the Certificateholders shall not be deemed parties thereto and shall have no claims, rights, obligations, duties or liabilities with respect to the sub-servicer, and no provision herein shall be construed so as to require the Trust, the Trustee, the Certificate Administrator, the Special Servicer or the Depositor to indemnify any such sub-servicer. Notwithstanding anything in this Agreement to the contrary, the Servicer and the Special Servicer are permitted, at their own expense, or to the extent that a particular expense is provided herein to be an Advance or a Trust Fund Expense, at the expense of the Trust, to utilize other agents or attorneys typically used by servicers of mortgage loans underlying commercial mortgage-backed securities in performing each of their obligations under this Agreement (including but not limited to inspectors, appraisers, engineers and property managers).

 

(e)       Notwithstanding anything herein, each of the initial Servicer and the initial Special Servicer may delegate certain of its duties and obligations hereunder to an Affiliate of the Servicer or Special Servicer, as applicable. Such delegation shall not be considered a sub-servicing agreement hereunder, and the requirements and obligations set forth herein applicable to sub-servicing agreements, sub-servicers or Servicing Function Participants shall not be applicable to such arrangement. Notwithstanding any such delegation, the Servicer and the Special Servicer shall remain obligated and liable for the performance of their respective obligations and duties under this Agreement in accordance with the provisions hereof to the same extent and under the same terms and conditions as if each alone were servicing and administering the Mortgage Loan as required hereby.

 

(f)       The parties hereto acknowledge that the Mortgage Loan is subject to the terms and conditions of the Co-Lender Agreement and recognize the respective rights and

 

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obligations of the Trust, as holder of the Trust Loan, and of the Companion Loan Holders under the Co-Lender Agreement, including: (i) with respect to the allocation of collections on or in respect of the Mortgage Loan, and the making of remittances, to the Trust, as holder of the Trust Loan, and to the Companion Loan Holders; (ii) with respect to the allocation of expenses and losses relating to the Mortgage Loan to the Trust, as holder of the Trust Loan, and to the Companion Loan Holders and (iii) to the extent provided for under the Co-Lender Agreement, the consultation rights of the Companion Loan Holders. With respect to the Mortgage Loan, the Servicer (if the Mortgage Loan is not a Specially Serviced Mortgage Loan) or the Special Servicer (if the Mortgage Loan has become a Specially Serviced Mortgage Loan or the Property has been converted to an Foreclosed Property) shall prepare and provide to each Companion Loan Holder all notices, reports, statements and communications to be delivered by the holder of the Trust Loan under the Co-Lender Agreement, and shall perform all duties and obligations to be performed by a servicer and perform all servicing related duties and obligations to be performed by the holder of the Trust Loan pursuant to the Co-Lender Agreement. In the event of any conflict between this Agreement and the Co-Lender Agreement, the terms of the Co-Lender Agreement shall control with respect to the Mortgage Loan.

 

(g)       Notwithstanding anything to the contrary herein, at no time shall the Servicer or the Trustee be required to make any advance of delinquent scheduled monthly payments of principal or interest with respect to any Companion Loan or any Administrative Advance with respect to any Companion Loan.

 

(h)       To the extent required under the Loan Documents or the Co-Lender Agreement, the Servicer shall, on behalf of the Lender, maintain a Notes register for the Mortgage Loan.

 

3.3.       Cash Management Account. A Cash Management Account has been established pursuant to the terms of the Mortgage Loan Agreement and the Cash Management Agreement. The Servicer shall exercise and enforce the rights of the Trust Fund with respect to the Cash Management Account under the Mortgage Loan Agreement and the Cash Management Agreement in accordance with Accepted Servicing Practices and the other terms of this Agreement and the other Mortgage Loan Documents.

 

3.4.       Collection Account, Companion Loan Distribution Account and Interest Reserve Account. (a) The Servicer shall establish and maintain in the name of “Wells Fargo Bank, National Association, as Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the holders of Aventura Mall Trust 2018-AVM, Commercial Mortgage Pass-Through Certificates, Series 2018-AVM, Collection Account” one or more deposit accounts on behalf of the Trustee for the benefit of the Certificateholders and (1) in the name of “Wells Fargo Bank, National Association, as Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the Companion Loan Holders with respect to Aventura Mall Trust 2018-AVM, Commercial Mortgage Pass-Through Certificates, Series 2018-AVM, Companion Loan Distribution Account” one deposit account for the benefit of the Companion Loan Holders (the “Companion Loan Distribution Account”), which may be a subaccount of the Collection Account, and funds in such account shall be remitted to the Companion Loan Holders (collectively, the “Collection Account”). The Collection Account must be an Eligible Account maintained with an Eligible Institution. The Servicer shall deposit into the Collection Account

 

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within two (2) Business Days of receipt of properly identified and available funds the following amounts representing payments and collections received or made during each Collection Period on or with respect to the Mortgage Loan (and not otherwise required to be deposited in the Reserve Accounts):

 

(i)           all payments on account of principal on the Mortgage Loan;

 

(ii)          all payments on account of interest on the Mortgage Loan, including Default Interest, Yield Maintenance Premiums and Yield Maintenance Default Premiums;

 

(iii)         any amount representing reimbursements by the Loan Parties of Advances, interest thereon, and any other expenses of the Depositor, the Trustee, the Certificate Administrator, the Servicer or the Special Servicer, as applicable, as required by the Mortgage Loan Documents or hereunder;

 

(iv)         any other amounts payable for the benefit of the Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Certificateholders under the Mortgage Loan;

 

(v)          any amounts required to be deposited pursuant to Section 3.8(b) in connection with net losses realized on Permitted Investments with respect to funds held in the Collection Account;

 

(vi)         all Net Foreclosure Proceeds received from the Special Servicer pursuant to Section 3.14, all Net Liquidation Proceeds, Insurance Proceeds and Condemnation Proceeds;

 

(vii)        any other amounts required by the provisions of this Agreement to be deposited into the Collection Account by the Servicer, including, without limitation, any (1) proceeds of any repurchase of the Trust Loan pursuant to Section 2.7(b) hereof and the Trust Loan Purchase Agreement, (2) proceeds of the sale of the Mortgage Loan by the Special Servicer pursuant to Section 3.16 hereof or (3) amounts payable under the Mortgage Loan Documents by any Person to the extent not specifically excluded; and

 

(viii)       on the Closing Date, the Interest Deposit Amount.

 

The foregoing requirements for deposits in the Collection Account by the Servicer shall be exclusive, it being understood and agreed that, without limiting the generality of the foregoing, payments (if any) in the nature of Additional Compensation (other than Default Interest and late payment charges) to which the Servicer or Special Servicer, as applicable are entitled pursuant to Section 3.17 and any reimbursement made by the Loan Parties of expenses of the Servicer or the Special Servicer need not be deposited in the Collection Account by the Servicer or Special Servicer and, to the extent permitted by applicable law, the Servicer or the Special Servicer, as applicable, shall be entitled to retain any such fees and expense reimbursements received with respect to the Mortgage Loan.

 

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(b)          Funds in the Collection Account may be invested in Permitted Investments in accordance with the provisions of Section 3.8. The Servicer shall on the Closing Date give written notice to the Certificate Administrator (with a copy to the Loan Parties) of the location and account number of the Collection Account and shall notify the Certificate Administrator in writing (with a copy to the Loan Parties) prior to any subsequent change thereof.

 

(c)          On or prior to each Remittance Date (or following the securitization of any Companion Loan, in the case of clause (xi) below, the earlier of (1) the Remittance Date or (2) the Business Day immediately succeeding the “determination date” set forth in the related Other Pooling and Servicing Agreement; provided that such “determination date” shall not be earlier than the Determination Date), prior to the remittance of funds to the Certificate Administrator for deposit in the Distribution Account pursuant to Section 3.4(a), the Servicer shall make withdrawals from the Collection Account (which withdrawals shall be the only permitted withdrawals from the Collection Account by the Servicer) as described below (the order set forth below constituting an order of priority for such withdrawals):

 

(i)           to withdraw funds deposited therein in error;

 

(ii)          to reimburse the Trustee (and the trustee with respect to each Other Securitization Trust) and the Servicer (and the master servicer with respect to each Other Securitization Trust), in that order, out of general collections on the Mortgage Loan for any Nonrecoverable Advances made by each and not previously reimbursed pursuant to clause (v)(A) below together with unpaid interest thereon at the Advance Rate as follows: (A) first, to reimburse Nonrecoverable Advances that are Property Protection Advances and Administrative Advances relating to the Mortgage Loan and the Property and interest thereon; (B) second, to first reimburse Nonrecoverable Advances that are Monthly Payment Advances or Companion Loan Advances on the A Notes and interest thereon, on a pro rata and pari passu basis, then to reimburse Nonrecoverable Advances that are Monthly Payment Advances on the Trust B Notes and interest thereon, on a pro rata and pari passu basis; and (C) third, to reimburse the master servicer with respect to each Other Securitization Trust for its pro rata share of Nonrecoverable Advances previously paid from general collections on the related Other Securitization Trust;

 

(iii)         concurrently, to pay the Servicing Fee to the Servicer, to pay the Certificate Administrator Fee (including the portion that is the Trustee Fee) to the Certificate Administrator, and to pay the Operating Advisor Fee to the Operating Advisor;

 

(iv)         to pay to the Operating Advisor the Operating Advisor Consulting Fee (but only to the extent actually received from the Borrower);

 

(v)          to pay (a) to the Servicer, as additional compensation, any income earned (net of losses (subject to Section 3.8(b)) on the investment of funds deposited in the Collection Account; and (b) the Special Servicing Fee, if any, the Work-out Fee, if any, and the Liquidation Fee, if any, to the Special Servicer; provided that such fees may be paid out of other amounts on deposit in the Collection Account to the extent Default

 

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Interest and late payment charges are not sufficient to pay such fees (with respect to clauses (a) and (b), in that order);

 

(vi)         to reimburse the Trustee and the Servicer, in that order, for (A) Advances made by each and not previously reimbursed from late payments received during the applicable period on the Mortgage Loan, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and other collections on the Mortgage Loan; provided that any Advance which has been determined to be a Nonrecoverable Advance shall be reimbursed pursuant to clause (ii) above and (B) unpaid interest on such Advances at the Advance Rate; provided, however, that, with respect to Advances that are not deemed to be Nonrecoverable Advances, prior to (x) final liquidation of the Property or (y) the final payment and release of the Mortgage, interest on such Advances shall only be paid out of Default Interest or late payment charges collected in the related Collection Period and after (A) final liquidation of the Property or (B) the final payment and release of the Mortgage, interest on such Advances may be paid out of other amounts on deposit in the Collection Account to the extent Default Interest and late payment charges are not sufficient to pay for such interest on Advances;

 

(vii)        to reimburse the Trustee, the Certificate Administrator, the Servicer and the Special Servicer, in that order, for expenses incurred by them in connection with the liquidation of the Mortgage Loan or the Property, and not otherwise covered and paid by an insurance policy or deducted from the proceeds of liquidation or not previously reimbursed pursuant to clauses (ii) or (v) above;

 

(viii)       to pay to the Servicer, the Special Servicer or the Operating Advisor, as applicable, as additional compensation, (A) to the extent actually received from the Borrower (and permitted by (or not otherwise prohibited by) and allocated as such pursuant to the terms of the Mortgage Loan Documents or this Agreement) and deposited into the Collection Account by the Servicer, any payments in the nature of any late payment fees and Default Interest (to the extent remaining after payment or reimbursement of any Special Servicing Fees, Liquidation Fees or Work-out Fees pursuant to clause (v) above and reimbursement of Advances and interest on Advances pursuant to clause (vi) above), release fees, defeasance fees, Assumption Fees, Assumption Application Fees, defeasance fees, substitution fees, Net Modification Fees, consent fees, amounts collected for checks returned for insufficient funds, charges for beneficiary statements or demands, loan processing fees, loan service transaction fees and similar fees and expenses; and (B) any income earned on the investment of funds deposited in the Collection Account and the Foreclosed Property Account; provided that such amounts received during each Collection Period shall be deemed to have been deposited in the Collection Account and withdrawn pursuant to this clause (vii) solely for the purpose of determining the Available Funds Reduction Amount in connection with the calculation of Available Funds for the related Distribution Date;

 

(ix)          to pay or reimburse the Depositor, the Trustee, the Certificate Administrator, the Servicer, the Special Servicer and the Operating Advisor in that order, for any indemnities, expenses and other amounts then due and payable or reimbursable to

 

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each pursuant to the terms of this Agreement and not previously paid or reimbursed pursuant to the preceding clauses (subject to clause (xi) below);

 

(x)           to the extent not previously paid or advanced, to remit to the Certificate Administrator, to pay (or set aside for eventual payment) any and all taxes imposed on the Trust or the Trust Fund by federal or state governmental authorities, including, without limitation amounts paid pursuant to Section 12.1(k); provided, that, if such taxes are the result of the Depositor’s, Servicer’s, Special Servicer’s, the Operating Advisor’s, the Certificate Administrator’s or Trustee’s, as applicable, negligence, bad faith or willful misconduct, such amounts may not be withdrawn from the Collection Account, but shall be paid by such party that was negligent, acted in bad faith or engaged in willful misconduct pursuant to Sections 6.6 and 8.12, as applicable;

 

(xi)          to pay CREFC® the CREFC® Intellectual Property Royalty License Fee (according to the payment instructions set forth on Exhibit Q hereto or such other payment instructions as CREFC® may provide from time to time in writing at least two Business Days prior to the Remittance Date); and

 

(xii)         to pay the Companion Loan Holders any portion of such collections that are required to be distributed to the Companion Loan Holders in respect of the Companion Loans pursuant to the terms of the Co-Lender Agreement;

 

provided that in no event shall the Servicer be permitted to apply any portion of collections that are required to be distributed to the Companion Loan Holders in respect of the Companion Loans pursuant to the terms of the Co-Lender Agreement to pay or reimburse any CREFC® Intellectual Property Royalty License Fee, the Certificate Administrator Fee, the Operating Advisor Fee, any Monthly Payment Advance on the Trust Loan (or interest accrued and payable on such Monthly Payment Advance) or any Trust Fund Expenses that are not related to the servicing and administration of the Mortgage Loan or the Property.

 

Notwithstanding the foregoing, with respect to any Remittance Date, in no event shall the Servicer be permitted to make a withdrawal pursuant to clauses 3.4(c)(iii), (v)(b), (vi), (vii), (ix) or (xi) above if, as a result of such withdrawal, the amount on deposit in the Collection Account after giving effect to such withdrawal would be less than the Required Advance Amount; provided that the Servicer shall be permitted to make withdrawals in the order of priority specified above up to the amount on deposit in the Collection Account that would result in funds equaling or exceeding the Required Advance Amount remaining in the Collection Account. Notwithstanding the foregoing, such withdrawal limitations shall not apply (and accrued amounts previously eligible for withdrawal pursuant to clauses (iii), (v)(b), (vi), (vii), (ix) or (xi) but which remain unpaid due to the operation of this paragraph may then be withdrawn and paid) upon (1) the final liquidation of the Mortgage Loan or the Property, (2) the final payment of the Mortgage Loan and release of the Mortgage or (3) the determination that any Advance that would increase the currently unreimbursed Advances in the aggregate such that it would be a Nonrecoverable Advance.

 

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The Servicer shall pay to the Certificate Administrator and the Trustee and advance or pay to the Special Servicer, if applicable, from the Collection Account, as provided above, amounts permitted to be paid to the Special Servicer, the Certificate Administrator and the Trustee therefrom, promptly upon receipt of certificates of a Responsible Officer of the Certificate Administrator or the Trustee or an officer of the Special Servicer describing the item and amount to which the Special Servicer, the Certificate Administrator and the Trustee, as the case may be, are entitled unless such payment to the Special Servicer, the Certificate Administrator or the Trustee, as the case may be, is clearly required pursuant to this Agreement, in which case a written certificate shall not be required. The Servicer may rely conclusively on any such certificate, shall have no duty to recalculate the amounts stated therein and shall have no liability if the amount paid in reliance thereon is an amount to which the Special Servicer, the Certificate Administrator or the Trustee, as applicable, is not entitled.

 

Upon the determination that a previously made Advance is a Nonrecoverable Advance, to the extent that the reimbursement thereof would exceed the full amount of the principal portion of general collections on the Mortgage Loan deposited in the Collection Account and available for distribution on the next Distribution Date, the Servicer or the Trustee, each at its own option and in its sole discretion, as applicable, instead of obtaining reimbursement for the remaining amount of such Nonrecoverable Advance pursuant to this Section 3.4(c) immediately, may elect to refrain from obtaining such reimbursement for such portion of the Nonrecoverable Advance during the Collection Period ending on the then-current Determination Date for successive one-month periods for a total period not to exceed 12 months. If the Servicer or the Trustee makes such an election at its sole option and in its sole discretion to defer reimbursement with respect to all or a portion of a Nonrecoverable Advance (together with interest thereon), then such Nonrecoverable Advance (together with interest thereon) or portion thereof shall continue to be fully reimbursable in the subsequent Collection Period (subject, again, to the same sole discretion to elect to defer; it is acknowledged that, in such a subsequent period, such Nonrecoverable Advance shall again be payable first from Principal Collections as described above prior to payment from other collections). In connection with a potential election by the Servicer or the Trustee to refrain from the reimbursement of a particular Nonrecoverable Advance or portion thereof during the one-month Collection Period ending on the related Determination Date for any Distribution Date, the Servicer or the Trustee shall further be authorized (in its sole discretion) to wait for Principal Collections on the Trust Loan and the Companion Loans to be received before making its determination of whether to refrain from the reimbursement of a particular Nonrecoverable Advance (or portion thereof) until the end of such Collection Period; provided, however, that if, at any time Servicer or the Trustee elects, in its sole discretion, not to refrain from obtaining such reimbursement or otherwise determines that the reimbursement of a Nonrecoverable Advance during a one month collection period will exceed the full amount of the principal portion of general collections deposited in the Collection Account for such Distribution Date, then the Servicer or the Trustee, as applicable, shall use its reasonable efforts to give notice of its election to the 17g-5 Information Provider (who shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 8.14(b) of this Agreement), at least 15 days prior to any reimbursement to it of Nonrecoverable Advances from amounts in the Collection Account allocable to interest on the Mortgage Loan unless extraordinary circumstances make such notice impractical, and thereafter shall deliver such notice to the 17g-5 Information Provider (who shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 8.14(b) of this Agreement) as soon as

 

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reasonably practical thereafter. Neither the Servicer nor the Trustee shall have any liability for any loss, liability or expense resulting from any notice provided to each Rating Agency contemplated by the immediately preceding sentence. Notwithstanding the foregoing, the failure to give such notice shall in no way affect the Servicer’s or the Trustee’s election as to whether to refrain from obtaining reimbursement pursuant to this Section 3.4(c).

 

(d)       The foregoing shall not, however, be construed to limit any liability that may otherwise be imposed on such Person for any failure by such Person to comply with the conditions to making such an election under this section or to comply with the terms of this section and the other provisions of this Agreement that apply once such an election, if any, has been made, provided, however, that the fact that a decision to recover such Nonrecoverable Advances over time, or not to do so, benefits some classes of Certificateholders to the detriment of other classes shall not, with respect to the Servicer constitute a violation of the Accepted Servicing Practices and/or with respect to the Trustee (solely in its capacity as Trustee), constitute a violation of any fiduciary duty to Certificateholders or any contractual obligation hereunder. If the Servicer or the Trustee, as applicable, determines, in its sole discretion, that its ability to fully recover the Nonrecoverable Advances has been compromised, then the Servicer or the Trustee, as applicable, shall be entitled to immediate reimbursement of Nonrecoverable Advances with interest thereon at the Advance Rate from all amounts in the Collection Account for such Distribution Date (deemed first from principal and then interest). Any such election by any such party to refrain from reimbursing itself or obtaining reimbursement for any Nonrecoverable Advance or portion thereof with respect to any one or more collection periods shall not limit the accrual of interest at the Advance Rate on such Nonrecoverable Advance for the period prior to the actual reimbursement of such Nonrecoverable Advance. The Servicer’s or the Trustee’s, as applicable, agreement to defer reimbursement of such Nonrecoverable Advances as set forth above is an accommodation to the Certificateholders and shall not be construed as an obligation on the part of the Servicer or the Trustee, as applicable, or a right of the Certificateholders. Nothing herein shall be deemed to create in the Certificateholders a right to prior payment of distributions over the Servicer’s or the Trustee’s, as applicable, right to reimbursement for Advances (deferred or otherwise) and accrued interest thereon. In all events, the decision to defer reimbursement or to seek immediate reimbursement of Nonrecoverable Advances shall be deemed to be in accordance with Accepted Servicing Practices and none of the Servicer, the Trustee or the other parties to this Agreement shall have any liability to one another or to any of the Certificateholders or any of the Companion Holders for any such election that such party makes as contemplated by this section or for any losses, damages or other adverse economic or other effects that may arise from such an election.

 

(e)       The Servicer shall withdraw from the Collection Account and, to the extent sufficient funds are on deposit therein, pay the CREFC® Intellectual Property Royalty License Fee to CREFC® in accordance with Section 3.4(c)(x) on a monthly basis, solely from funds on deposit in the Collection Account.

 

(f)       The Certificate Administrator shall establish and maintain a reserve account (which may be a subaccount of the Distribution Account) (the “Interest Reserve Account”) for the benefit of the Trustee and for the benefit of the Certificateholders. The Interest Reserve Account must be an Eligible Account maintained with an Eligible Institution. Funds on deposit in the Interest Reserve Account shall be uninvested. On each Distribution Date

 

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occurring in any February and on any Distribution Date occurring in any January which occurs in a year that is not a leap year (unless, in either case, such Distribution Date is the final Distribution Date), the Certificate Administrator shall deposit into the Interest Reserve Account an amount equal to one day’s net interest collected on the principal balance of each Trust Note as of the Payment Date occurring in the month preceding the month in which such Distribution Date occurs at the applicable Trust Note Rate (net of interest at the Servicing Fee Rate applicable to the Trust Loan, the Certificate Administrator Fee Rate (including the portion that is the Trustee Fee Rate), the Operating Advisor Fee Rate and the CREFC® Intellectual Property Royalty License Fee Rate and exclusive of Default Interest allocable to the Trust Loan payable therefrom) to the extent a full Monthly Payment or Monthly Payment Advance is made in respect thereof (all amounts so deposited in any consecutive January and February, “Withheld Amounts”). On each Remittance Date occurring in March (or February, if the related Distribution Date is the final Distribution Date), the Certificate Administrator shall withdraw from the Interest Reserve Account an amount equal to the Withheld Amounts from the preceding January and February, if any, and transfer such amounts into the Distribution Account.

 

3.5.         Distribution Account. (a) The Certificate Administrator shall establish and maintain in the name of “Wells Fargo Bank, National Association”, as Certificate Administrator, on behalf of “Wilmington Trust, National Association”, as the Trustee and for the benefit of the holders of Aventura Mall Trust 2018-AVM, Commercial Mortgage Pass-Through Certificates, Series 2018-AVM, a deposit account (the “Distribution Account”), which shall be deemed to include the Lower-Tier Distribution Account and the Upper-Tier Distribution Account, which shall be subaccounts of the Distribution Account for the benefit of the Certificateholders and the Trustee, as holder of the Uncertificated Lower-Tier Interests. The Distribution Account must be an Eligible Account maintained with an Eligible Institution. On each Remittance Date, the Servicer shall transfer from the Collection Account to the Certificate Administrator for deposit into the Distribution Account all Available Funds remaining on deposit therein, after giving effect to the withdrawals made pursuant to Section 3.4(c). The Certificate Administrator shall credit the funds remitted by the Servicer from the Collection Account to the Distribution Account.

 

Amounts held in the Distribution Account and the Interest Reserve Account shall not be invested.

 

The Certificate Administrator shall make withdrawals from the Distribution Account to withdraw any amounts deposited in error, to withdraw amounts due to it under Section 3.4(c), to the extent such amounts were not withdrawn and paid to it by the Servicer under Section 3.4(c), and then to make distributions to the Holders of the Certificates pursuant to Section 4.1.

 

(b)          The Certificate Administrator shall make or be deemed to have made withdrawals from the Lower-Tier Distribution Account in the following order of priority and only for the following purposes:

 

(i)           to make deposits of the Lower-Tier Distribution Amount pursuant to Section 4.1(b) and Section 4.3(b) into the Upper-Tier Distribution Account and to make

 

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distributions to the Holder of the Class R Certificates (in respect of the Class LT-R Interest) pursuant to Section 4.1(b);

 

(ii)          to withdraw amounts deposited into the Lower-Tier Distribution Account in error and pay such amounts to the Persons entitled thereto; and

 

(iii)         to clear and terminate the Lower-Tier Distribution Account pursuant to Section 10.1.

 

(c)          The Certificate Administrator shall make withdrawals from the Upper-Tier Distribution Account in the following order of priority and only for the following purposes:

 

(i)           to withdraw amounts deposited in error and to withdraw amounts due to it and the Trustee under Section 3.4(c), to the extent such amounts were not withdrawn and paid to it by the Servicer under Section 3.4(c);

 

(ii)          to make distributions to Holders of the Regular Certificates and the Class R Certificates (in respect of the Class UT-R Interest) on each Distribution Date pursuant to Section 4.1 or Section 10.2 as applicable; and

 

(iii)         to clear and terminate the Upper-Tier Distribution Account at the termination of this Agreement pursuant to Section 10.1.

 

3.6.         Foreclosed Property Account. The Special Servicer shall establish and maintain one or more deposit accounts (the “Foreclosed Property Account”) in the name of either (a) “CWCapital Asset Management LLC, as Special Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the holders of Aventura Mall Trust 2018-AVM, Commercial Mortgage Pass-Through Certificates, Series 2018-AVM and the Companion Loan Holders, Foreclosed Property Account” related to the Foreclosed Property, if any, held in the name of the Special Servicer on behalf of the Trustee for the benefit of the Certificateholders and the Companion Loan Holders or (b) the limited liability company wholly owned by the Trust and which is managed by the Special Servicer, formed to hold title to the Foreclosed Property pursuant to Section 3.14. Each Foreclosed Property Account must be an Eligible Account maintained with an Eligible Institution. The Special Servicer shall deposit into the Foreclosed Property Account within two (2) Business Days of receipt of all properly identified funds collected and received in connection with the operation or ownership of such Foreclosed Property. On or before the last day of each Collection Period, the Special Servicer shall withdraw the funds in any Foreclosed Property Account, net of certain expenses and/or reserves (the amount of such expenses and/or reserves as determined in the Special Servicer’s reasonable discretion), and deposit them into the Collection Account in accordance with Section 3.4(a). The Special Servicer shall notify the Certificate Administrator in writing of the location and account number of each Foreclosed Property Account and shall notify the Certificate Administrator in writing prior to any subsequent change thereof.

 

3.7.       Appraisal Reductions. (a) Within 60 days after the occurrence of an Appraisal Reduction Event with respect to the Mortgage Loan, the Special Servicer shall (i) notify the Servicer, the Operating Advisor, the Trustee and the Certificate Administrator and, so long as no Consultation Termination Event has occurred, the Directing Certificateholder, of

 

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such occurrence of an Appraisal Reduction Event, (ii) order (which order shall be placed within 30 days of the occurrence of the Appraisal Reduction Event) and use efforts consistent with Accepted Servicing Practices to obtain an Appraisal of the Property (provided that the Special Servicer will not be required to obtain an Appraisal of the Property with respect to which there exists an Appraisal which was performed less than nine (9) months prior to the Appraisal Reduction Event and the Special Servicer does not have knowledge of any material change in the market or condition or value of such Property since the date of such Appraisal, in which case such Appraisal with respect to such Property shall be used by the Special Servicer), (iii) determine whether there exists any Appraisal Reduction Amount on the basis of the applicable Appraisal, and receipt of information reasonably requested by the Special Servicer from the Servicer necessary to calculate the Appraisal Reduction Amount, and (iv) allocate the Appraisal Reduction Amount to the Trust Loan and the Companion Loans and give reasonably prompt notice of such Appraisal Reduction Amount, the Trust Appraisal Reduction Amount and the portion of the Appraisal Reduction Amount allocated to the Companion Loans to the Companion Loan Holder (or, in the case of a Companion Loan that is part of an Other Securitization Trust, the master servicer, special servicer and trustee with respect to such Other Securitization Trust), the Trustee, the Certificate Administrator (to the extent not already reported to such parties on the CREFC® Reports provided by the Servicer and posted on the Certificate Administrator’s website) and the Operating Advisor. The cost of obtaining such Appraisals shall be paid by the Servicer as a Property Protection Advance or an Administrative Advance unless it would constitute a Nonrecoverable Advance and in such case, as a Trust Fund Expense. Updates of such Appraisals shall be obtained by the Special Servicer, and paid for by the Servicer as a Property Protection Advance or an Administrative Advance (or paid for by the Trust if the Servicer determines that such Advance would constitute a Nonrecoverable Advance) every nine (9) months for so long as an Appraisal Reduction Event exists, and the Appraisal Reduction Amount shall be adjusted accordingly. If required in accordance with any such adjustment, each Class of Certificates that has been notionally reduced for purposes of determining Voting Rights as a result of the application of the Trust Appraisal Reduction Amount shall have its related Certificate Balance notionally restored by the Certificate Administrator or the Trustee to the extent required by such adjustment of the Trust Appraisal Reduction Amount, and there shall be a redetermination of whether a Control Event has occurred by the Certificate Administrator. Any such Appraisal obtained under this Section shall be delivered by the Special Servicer to the Trustee, the Certificate Administrator and the Operating Advisor, in electronic format and, so long as no Consultation Termination Event has occurred, the Directing Certificateholder in electronic format and the Certificate Administrator shall make such Appraisal available to Privileged Persons pursuant to Section 8.14(b). The Servicer shall provide (via electronic delivery) the Special Servicer with information in its possession that is reasonably required to calculate or recalculate any Appraisal Reduction Amount pursuant to the definition thereof, using reasonable efforts to deliver such information within four (4) Business Days of the Special Servicer’s written request (which request shall be made promptly, but in no event later than ten (10) Business Days, after the Special Servicer’s receipt of the applicable Appraisal or preparation of the applicable internal valuation) provided, however, that the Special Servicer’s failure to timely make such a request shall not relieve the Servicer of its obligation to provide such information to the Special Servicer in the manner and timing set forth in this sentence. Accordingly, the Special Servicer shall not be obligated to calculate, recalculate, determine or redetermine any Appraisal Reduction Amount until such time as it receives from

 

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the Servicer the information reasonably required by the Special Servicer to make such calculation, recalculation, determination or redetermination. The Servicer shall not calculate Appraisal Reduction Amounts.

 

(b)       While any Trust Appraisal Reduction Amount (or deemed Trust Appraisal Reduction Amount pursuant to Section 3.7(e)) exists with respect to the Mortgage Loan, (i) the amount of any Monthly Payment Advances shall be reduced as provided in Section 3.23(a) and (ii) the existence thereof (other than any deemed Trust Appraisal Reduction Amount calculated pursuant to Section 3.7(e)) will be taken into account for purposes of determining the Voting Rights of certain Classes of Certificates as provided in Section 3.7(c) and (iii) except with respect to any deemed Trust Appraisal Reduction Amount pursuant to Section 3.7(e), there shall be a determination of whether a Control Event has occurred.

 

(c)       The Certificate Balance of each of the Sequential Pay Certificates shall be notionally reduced solely for purposes of determining (x) the Voting Rights of the related Classes to the extent set forth in this Agreement and (y) whether a Control Event has occurred on any Distribution Date to the extent of any Trust Appraisal Reduction Amount allocated to such Class on such Distribution Date. The Trust Appraisal Reduction Amount for any Distribution Date shall be applied to notionally reduce the Certificate Balances of the Sequential Pay Certificates in the following order of priority: first, to the Class HRR Certificates; second to the Class D Certificates; third, to the Class C Certificates, and fourth, to the Class B Certificates (provided in each case that no Certificate Balance in respect of any such Class may be notionally reduced below zero). Trust Appraisal Reduction Amounts shall not be applied to notionally reduce the Certificate Balance of the Class A Certificates.

 

(d)       In the event that a portion of one or more Monthly Payment Advances with respect to the Trust Loan is reduced as a result of an Appraisal Reduction Event, the amount of the Net Liquidation Proceeds to be applied to interest on the Trust Loan shall be reduced by the aggregate amount of such reductions and the portion of such Net Liquidation Proceeds to be applied to principal of the Trust Loan shall be increased by such amount, and if the amounts of the Net Liquidation Proceeds to be applied to principal of the Trust Loan have been applied to pay the principal of the Trust Loan in full, any remaining Net Liquidation Proceeds shall then be applied to pay any remaining accrued and unpaid interest on the Trust Loan in accordance with Section 1.3.

 

(e)       If (i) an Appraisal Reduction Event has occurred, (ii) either (A) no Appraisals or updates of the Appraisals have been obtained or conducted with respect to the Property or Foreclosed Property, as the case may be, during the nine-month period prior to the date of such Appraisal Reduction Event or (B) the Special Servicer has knowledge of a material change in the circumstances surrounding the Property or Foreclosed Property, as the case may be, has occurred since the date of the most recent Appraisal that would materially adversely affect the value of the Property or Foreclosed Property, as the case may be, and (iii) no new Appraisal has been obtained or conducted for the Property or Foreclosed Property, as the case may be, within 60 days after the Appraisal Reduction Event, then (x) until each new Appraisal is conducted, the Appraisal Reduction Amount for the Property or Foreclosed Property, as the case may be, shall be deemed to be equal to 25% of the outstanding principal balance of the Mortgage Loan, and (y) upon receipt or performance of the new Appraisal by the Special Servicer, the

 

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Appraisal Reduction Amount for the Property or Foreclosed Property, as the case may be, shall be recalculated in accordance with the definition of Appraisal Reduction Amount. Such deemed Appraisal Reduction Amount shall be allocated to the Notes in the same manner in which the actual Appraisal Reduction Amount is allocated to the Notes. Notwithstanding the foregoing, such deemed Trust Appraisal Reduction Amounts shall not be allocated to any Class of Certificates for purposes of (i) determining whether a Control Event has occurred and is continuing or (ii) allocating Voting Rights; provided, however, this sentence shall not affect in any manner the effect of Trust Appraisal Reduction Amounts based upon anything other than clause (x) of the preceding sentence, including when the related Appraisals are received.

 

With respect to any Appraisal Reduction Amount calculated for purposes of determining an Appraisal Reduction Event, the appraised value (as determined by an updated Appraisal) of the Property securing the Mortgage Loan will be determined on an “as-is” basis, based upon the current physical condition, use and zoning of the Property as of the date of the Appraisal.

 

If the Certificate Balance of the Class HRR Certificates (taking into account the application of any Trust Appraisal Reduction Amounts (other than any deemed Trust Appraisal Reduction Amount pursuant to Section 3.7(e)) to notionally reduce the Certificate Balance of such Class) has been reduced to less than 25% of its Initial Certificate Balance, such Class will be referred to as the “Appraised-Out Class”. The Holders of the majority (by Certificate Balance) of the Appraised-Out Class shall have the right, at their sole expense, to require the Special Servicer to order a second Appraisal of the Property (such Holders, the “Requesting Holders”). The Special Servicer shall use commercially reasonable efforts to ensure that such Appraisal is delivered within 60 days from receipt of the Requesting Holders’ written request and shall ensure that such Appraisal is prepared by an Independent Appraiser).

 

In addition, if subsequent to the Class HRR Certificates becoming an Appraised-Out Class there is a material change with respect to the Property related to the Appraisal Reduction Amounts that caused such Class to become an Appraised-Out Class, the Requesting Holders shall have the right to request, in writing, that the Special Servicer obtain an additional Appraisal, which request shall set forth the Requesting Holder’s belief of what constitutes a material change to the Property (including any related documentation). The costs of obtaining such additional Appraisal shall be paid by the Requesting Holders. Subject to the Special Servicer’s confirmation, determined in accordance with Accepted Servicing Practices, that there has been a change with respect to such Property and such change was material, the Special Servicer shall order another Appraisal from an Independent Appraiser, the identity of which shall be determined by the Special Servicer in accordance with Accepted Servicing Practices (provided that such Independent Appraiser may not be the same Independent Appraiser that provided the Appraisal in respect of which the Requesting Holders are requesting the Special Servicer to obtain an additional Appraisal), and shall recalculate such Appraisal Reduction Amount based upon such second Appraisal. If required by any such recalculation, the Appraised-Out Class shall be reinstated as the Controlling Class. Appraisals that are permitted to be requested by any Appraised-Out Class shall be in addition to any Appraisals that the Special Servicer may otherwise be required to obtain in accordance with Accepted Servicing Practices upon the occurrence of such material change or that the Special Servicer is otherwise required or

 

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permitted to order under this Agreement without regard to any Appraisal requests made by any Requesting Holder.

 

Upon receipt of any supplemental Appraisal pursuant to the two preceding paragraphs, the Special Servicer shall recalculate the Appraisal Reduction Amount and the Trust Appraisal Reduction Amount based upon such second Appraisal. If required by any such recalculation, the Appraised-Out Class shall be reinstated as the Controlling Class and the Appraised-Out Class shall have its Certificate Balance notionally restored to the extent required by such recalculation of the Appraisal Reduction Amount and the Trust Appraisal Reduction Amount.

 

Any Appraised-Out Class for which the Requesting Holders are challenging the Special Servicer’s Appraisal Reduction Amounts determination may not exercise any rights of the related Controlling Class until such time, if any, as such Class is reinstated as the Controlling Class.

 

3.8.         Investment of Funds in the Collection Account and Any Foreclosed Property Account. (a) The Servicer, with respect to the Collection Account and the Reserve Accounts, and the Special Servicer, with respect to the Foreclosed Property Accounts, may direct any depository institution maintaining the Collection Account, any Foreclosed Property Account and any Reserve Account (to the extent interest is not payable to the Loan Parties under applicable law or the Mortgage Loan Documents), respectively (each, for purposes of this Section 3.8, an “Investment Account”), to invest the funds in such Investment Account in one or more Permitted Investments that bear interest or are sold at a discount, and that mature, unless payable on demand, no later than the Business Day preceding the date on which such funds are required to be withdrawn from such Investment Account pursuant to this Agreement. Any direction by the Servicer or Special Servicer, as applicable, to invest funds on deposit in an Investment Account shall be in writing and shall certify that the requested investment is a Permitted Investment which matures at or prior to the time required hereby or is payable on demand. All such Permitted Investments shall be held to maturity, unless payable on demand. Any investment of funds in an Investment Account shall be made in the name of the Trustee (in its capacity as such) or in the name of a nominee of the Trustee. The Trustee shall have sole control (except with respect to investment direction, which shall be in the control of the Servicer (or the Special Servicer, with respect to any Foreclosed Property Accounts) as an independent contractor to the Trust Fund) over each such investment and any certificate or other instrument evidencing any such investment shall be delivered directly to the Trustee or its agent (which shall initially be the Servicer or Special Servicer, as applicable), together with any document of transfer, if any, necessary to transfer title to such investment to the Trustee or its nominee. The Trustee shall have no responsibility or liability with respect to the investment directions of the Servicer or Special Servicer or any losses resulting therefrom, whether from Permitted Investments or otherwise. In the event amounts on deposit in an Investment Account are at any time invested in a Permitted Investment payable on demand, the Servicer and Special Servicer, as applicable, shall:

 

(i)           consistent with any notice required to be given thereunder, demand that payment thereon be made on the last day such Permitted Investment may otherwise

 

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mature hereunder in an amount equal to the lesser of (1) all amounts then payable thereunder and (2) the amount required to be withdrawn on such date; and

 

(ii)          demand payment of all amounts due thereunder promptly upon determination by the Servicer or Special Servicer, as applicable, that such Permitted Investment would not constitute a Permitted Investment in respect of funds thereafter on deposit in the related Investment Account.

 

(b)          All net income and gain realized from investment of funds deposited in the Collection Account and the Reserve Accounts (to the extent not payable to the Loan Parties under applicable law or the Mortgage Loan Documents) shall be for the benefit of the Servicer in accordance with the terms and priorities of this Agreement. All net income and gain realized from investment of funds deposited in the Foreclosed Property Account shall be for the benefit of the Special Servicer. Any net losses on funds in the Collection Account, the Reserve Accounts (except, in the case of any such loss with respect to a Reserve Account, to the extent any such losses are incurred on amounts invested for the benefit of the Borrower under the terms of the Mortgage Loan Documents) or the Foreclosed Property Account shall be reimbursed by the Servicer or the Special Servicer, as applicable, from its own funds promptly, but in any event on or prior to the Remittance Date following the realization of such loss. Notwithstanding the above, neither the Servicer nor the Special Servicer shall be required to deposit any loss on an investment of funds in an Investment Account if such loss (i) was incurred solely as a result of the bankruptcy or insolvency of the federal or state chartered depository institution or trust company that holds such Investment Account, so long as such depository institution or trust company satisfied the qualifications set forth in the definition of “Eligible Institution” included in Section 1.1 at the time such investment was made, (ii) such loss was incurred within thirty (30) days of the date of such insolvency, (iii) such loss is not the result of fraud, negligence or the willful misconduct of the Servicer or the Special Servicer, as applicable and (iv) and such institution was not an Affiliate of the Servicer, Special Servicer, the Certificate Administrator, the Operating Advisor or Trustee, as applicable.

 

(c)          Except as otherwise expressly provided in this Agreement, if any default occurs in the making of a payment due under any Permitted Investment, or if a default occurs in any other performance required under any Permitted Investment, the Servicer shall take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate proceedings. In the event the Servicer takes any such action, the Trust Fund shall pay or reimburse the Servicer, pursuant to Section 3.4(c), for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Servicer in connection therewith.

 

(d)          For the avoidance of doubt, the Collection Account, the Foreclosed Property Account, the Interest Reserve Account and the Lower-Tier Distribution Account (including interest, if any, earned on the investment of funds in such accounts) will be owned by the Lower-Tier REMIC, and the Upper-Tier Distribution Account (including interest, if any, earned on the investment of funds in such account) will be owned by the Upper-Tier REMIC, each for federal income tax purposes.

 

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3.9.       Payment of Taxes, Assessments, etc. The Servicer (other than with respect to Foreclosed Property) and the Special Servicer (with respect to Foreclosed Property) shall maintain, accurate records with respect to the Property (or such Foreclosed Property, as the case may be) reflecting the status of taxes, assessments, charges and other similar items that are or may become a lien on the Property (or such Foreclosed Property, as the case may be) and the status of insurance premiums payable in respect of insurance policies required to be maintained pursuant to Section 3.11 hereof. The Servicer shall obtain, from time to time, all bills for the payment of such items (including renewal premiums). The Servicer shall pay real estate taxes, insurance premiums and other similar items from funds in the applicable Reserve Account in accordance with the Mortgage Loan Agreement at such time as may be required by the Mortgage Loan Documents. If the Loan Parties do not make the necessary payments and/or a Mortgage Loan Event of Default has occurred and amounts in the applicable Reserve Account are insufficient to make such payments, the Servicer shall make a Property Protection Advance, subject to the determination of non-recoverability provided in Section 3.23, from its own funds for amounts payable with respect to all such items related to the Property when and as the same shall become due and payable. The Servicer shall ensure that the amount of funds in the applicable Reserve Account is increased when and if applicable taxes, assessments, charges and other similar items, ground rents or insurance premiums are increased, in accordance with the terms of the Mortgage Loan Agreement.

 

3.10.       Appointment of Special Servicer. (a) CWCapital Asset Management LLC is hereby appointed as the initial Special Servicer to service the Mortgage Loan while a Special Servicing Loan Event has occurred and is continuing and perform the other obligations of the Special Servicer hereunder.

 

(b)          If there is a Special Servicer Termination Event with respect to any Special Servicer, such Special Servicer may be removed and replaced pursuant to Sections 7.1 and 7.2. The Trustee shall, promptly after receiving notice of any such Special Servicer Termination Event notify the Servicer, the Companion Loan Holders, the Certificate Administrator (which shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.14(b)) and the 17g-5 Information Provider (which shall post such notice on the 17g-5 Information Provider’s Website in accordance with Section 8.14(b)). The appointment of any such successor Special Servicer shall not relieve the Servicer or the Trustee of their respective obligations to make Advances as set forth herein; provided, however, the initial Special Servicer specified above shall not be liable for any actions or any inaction of such successor Special Servicer. No termination fee shall be payable to the terminated Special Servicer. No termination of the Special Servicer and appointment of a successor Special Servicer shall be effective until the successor Special Servicer has assumed all of its responsibilities, duties and liabilities hereunder in writing, and a Rating Agency Confirmation with respect to such appointment has been delivered to the Trustee and the Certificate Administrator and their respective counterparts with respect to each Other Securitization Trust. Any successor Special Servicer shall be deemed to make the representations and warranties provided for in Section 2.5 mutatis mutandis as of the date of its succession. The terminated Special Servicer shall retain all rights accruing to it under this Agreement, including the right to receive fees accrued prior to its termination and other amounts payable to it (including indemnification payments).

 

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(c)       Upon determining that a Special Servicing Loan Event has occurred and is continuing with respect to the Mortgage Loan, the Servicer shall promptly give notice thereof to each other party hereto and the Servicer shall use its reasonable efforts to provide the Special Servicer with all information, documents (but excluding the original documents constituting the Mortgage File) and records (including records stored electronically on computer tapes, magnetic discs and the like) relating to the Mortgage Loan and reasonably requested by the Special Servicer to enable it to assume its duties hereunder with respect thereto (and concurrently provide a copy of such Mortgage File, exclusive of all Privileged Communications, to the Operating Advisor). The Servicer shall use its reasonable efforts to comply with the preceding sentence within five (5) Business Days of the date that a Special Servicing Loan Event has occurred. The Servicer in any event shall continue to act as Servicer and administrator of the Mortgage Loan until the Special Servicer has commenced the servicing of the Mortgage Loan, which shall occur upon the receipt by the Special Servicer of the information, documents and records referred to in the preceding sentence. The Special Servicer shall instruct the Loan Parties to continue to remit all payments in respect of the Mortgage Loan to the Servicer. The Servicer shall forward any notices it would otherwise send to the Loan Parties under the Mortgage Loan to the Special Servicer who shall send such notice to the Loan Parties while a Special Servicing Loan Event has occurred and is continuing.

 

(d)       Upon determining that a Special Servicing Loan Event is no longer continuing with respect to the Mortgage Loan, the Special Servicer shall promptly give notice thereof to the Companion Loan Holders and each other party hereto, and upon giving such notice such Special Servicing Loan Event shall cease, the Special Servicer’s obligation to service the Mortgage Loan shall terminate and the obligations of the Servicer to service and administer the Mortgage Loan shall resume and the Special Servicer shall return all of the information and materials furnished to the Special Servicer pursuant to Section 3.10(c) to the Servicer.

 

(e)       In making a Major Decision or in servicing the Mortgage Loan during the continuance of a Special Servicing Loan Event, the Special Servicer shall provide to the Custodian originals of documents entered into in connection therewith that are required to be included within the definition of “Mortgage File” for inclusion in the Mortgage File (to the extent such documents are in the possession of the Special Servicer) and copies of any additional related Mortgage Loan information, including written correspondence with the Loan Parties, and the Special Servicer shall promptly provide copies of all of the foregoing to the Servicer as well as copies of any analysis or internal review prepared by or for the benefit of the Special Servicer; provided that, such materials shall not include any Privileged Information.

 

(f)       During any period in which a Special Servicing Loan Event is continuing, not later than 4:00 p.m. (New York Time) on each Determination Date, the Special Servicer shall deliver to the Servicer, to the extent not included in the CREFC® Special Servicer Loan File, a written statement describing (i) the amount of all payments on account of interest received on the Mortgage Loan, the amount of all payments on account of principal received on the Mortgage Loan, the amount of Insurance Proceeds, Condemnation Proceeds and Net Liquidation Proceeds received, the amount of any Foreclosure Proceeds received with respect to the Property, and the amount of net income or net loss, as determined from management of a trade or business on, the furnishing or rendering of a non-customary service to the tenants of, or the receipt of any rental income that does not constitute Rents from Real Property with respect to, any Foreclosed

 

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Property, in each case in accordance with Section 12.2 and (ii) such additional information relating to the Mortgage Loan as the Servicer or Certificate Administrator reasonably requests to enable it to perform its duties under this Agreement.

 

(g)       [Reserved.]

 

(h)       Notwithstanding the provisions of the preceding subsection (c), the Servicer shall maintain ongoing payment records with respect to the Mortgage Loan and shall provide the Special Servicer with any information reasonably required by the Special Servicer to perform its duties under this Agreement.

 

(i)        Within sixty (60) days after a Special Servicing Loan Event occurs (the “Initial Delivery Date”), the Special Servicer shall prepare a report (the “Asset Status Report”) for the Mortgage Loan and the Property and shall amend, update or create a new Asset Status Report to the extent that during the course of the resolution of the Mortgage Loan material changes in the circumstances and/or strategy reflected in any current Final Asset Status Report are necessary to reflect the then current circumstances and recommendation as to how the Specially Serviced Mortgage Loan might be returned to performing status or otherwise liquidated in accordance with Accepted Servicing Practices (each such report a “Subsequent Asset Status Report”). The Special Servicer shall deliver each Final Asset Status Report in electronic form to: (i) the Servicer, (ii) the Directing Certificateholder (but only so long as no Consultation Termination Event has occurred), (iii) the Operating Advisor (but only after the occurrence and during the continuance of an Operating Advisor Consultation Event), (iv) the 17g-5 Information Provider in accordance with Section 8.14(b) (who shall promptly post it to the 17g-5 Information Provider’s Website pursuant to Section 8.14(b)) and (v) the Companion Loan Holders. Such Asset Status Report shall set forth the following information (other than Privileged Information) to the extent reasonably determinable:

 

(i)       summary of the status of the Mortgage Loan and any negotiations with the Loan Parties;

 

(ii)      a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with Accepted Servicing Practices, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan and whether outside legal counsel has been retained;

 

(iii)     the most current rent roll and income or operating statement available for the Property;

 

(iv)     the Special Servicer’s recommendations on how the Mortgage Loan might be returned to performing status and returned to the Servicer for regular servicing or otherwise realized upon;

 

(v)       the appraised value of the Property together with the appraisal or the assumptions used in the calculation thereof;

 

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(vi)         the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional Mortgage Loan Events of Default;

 

(vii)        a description of any proposed amendment, modification or waiver of a material term of any ground lease;

 

(viii)       a description of any proposed actions;

 

(ix)          the alternative courses of action considered by the Special Servicer in connection with the proposed actions;

 

(x)           the decision that the Special Servicer intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; and an analysis of whether or not taking such action is reasonably likely to produce a greater recovery on a net present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable discount rate used) and all related assumptions;

 

(xi)         a summary of the status of any action that was described in the most recent prior Asset Status Report and subsequently effected by the Special Servicer; and

 

(xii)        such other information as the Special Servicer deems relevant in light of the proposed action and Accepted Servicing Practices.

 

(j)           The Special Servicer shall (x) deliver to the 17g-5 Information Provider (which shall post to the 17g-5 Information Provider’s Website pursuant to Section 8.14(b)) the Final Asset Status Report, (y) deliver to the Certificate Administrator a proposed notice to Certificateholders that will include a summary of the Final Asset Status Report in an electronic format, which format is reasonably acceptable to the Certificate Administrator (which will be a brief summary of the current status of the Property and current strategy with respect to the resolution and workout of the Mortgage Loan), and the Certificate Administrator shall post such summary (but not the Final Asset Status Report itself) on the Certificate Administrator’s Website pursuant to Section 8.14(b) and (z) implement the Final Asset Status Report in the form delivered to the 17g-5 Information Provider. Subject to the consent and consultation rights of the Directing Certificateholder described in this Section 3.10(i), the Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered. Upon such modification, the Special Servicer shall prepare an updated summary and deliver the updated summary to the Certificate Administrator and deliver the modified Asset Status Report to the 17g-5 Information Provider. The 17g-5 Information Provider shall post such modified Asset Status Report on the 17g-5 Information Provider’s Website pursuant to Section 8.14(b), and the Certificate Administrator shall post such summary on the Certificate Administrator’s Website. In no event, however, will the Special Servicer be required to deliver a summary of any interim or draft Asset Status Report.

 

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(k)       Subject to the last paragraph of Section 9.3(a), prior to the occurrence and continuance of a Control Event, if within ten (10) Business Days of receiving an Asset Status Report, the Directing Certificateholder does not disapprove such Asset Status Report in writing, the Special Servicer shall implement the recommended action as outlined in such Asset Status Report. In addition, so long as no Control Event has occurred or is continuing, if the Directing Certificateholder disapproves such Asset Status Report within ten (10) Business Days of receipt and the Special Servicer has not made the determination described below, the Special Servicer shall revise such Asset Status Report and deliver a new Asset Status Report as soon as practicable, but in no event later than thirty (30) days after such disapproval, to the Directing Certificateholder, the Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Companion Loan Holders and the 17g-5 Information Provider (which shall promptly post such revised Asset Status Report on the 17g-5 Information Provider’s Website in accordance with Section 8.15(b)). Prior to the occurrence and continuance of a Control Event, the Special Servicer shall continue to revise such Asset Status Report as described above in this Section 3.10(i) until the Directing Certificateholder shall fail to disapprove such revised Asset Status Report in writing within ten (10) Business Days of receiving such revised Asset Status Report, until the Directing Certificateholder’s approval is no longer required or until the Special Servicer makes the determination described below. Notwithstanding the foregoing, the Special Servicer (A) may, following the occurrence of an extraordinary event with respect to the Property or the Mortgage Loan or, if a failure to take any such action at such time would be inconsistent with Accepted Servicing Practices, take any action set forth in such Asset Status Report before the expiration of a ten (10) Business Day period and (B) shall implement the action recommended in the Asset Status Report, in each case if it makes a determination in accordance with Accepted Servicing Practices that such affirmative disapproval is not in the best interest of all the Certificateholders; provided, however, that, if the Directing Certificateholder does not approve or is not deemed to have approved an Asset Status Report within ninety (90) days from the first submission of an Asset Status Report, then the Special Servicer and the Directing Certificateholder shall use reasonable efforts to negotiate a mutually agreeable Asset Status Report during the next thirty (30) days, and if they are unable to reach an agreement within such 30-day period, the Special Servicer shall take the action recommended in its most recently submitted Asset Status Report; provided, further, that such Asset Status Report is not intended to replace or satisfy any other specific consent or approval right which the Directing Certificateholder may have pursuant to Section 9.3.

 

(l)       Prior to the occurrence and continuance of an Operating Advisor Consultation Event, the Operating Advisor’s review of a Final Asset Status Report shall only provide background information to support the Operating Advisor’s duties concerning the Special Servicer’s compliance with the Accepted Servicing Practices, and the Operating Advisor shall not provide comments to the Special Servicer in respect of such Final Asset Status Report. After the occurrence and during the continuance of an Operating Advisor Consultation Event, the Operating Advisor shall consult with and provide comments to the Special Servicer in respect of each Asset Status Report, if any, within ten (10) Business Days following the later of (i) receipt of such Asset Status Report or (ii) receipt of such additional information reasonably requested by the Operating Advisor related thereto, and propose possible alternative courses of action to the extent it determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that are holders of the Controlling Class Certificates), as a collective whole. The Special Servicer shall consider such alternative courses of action, if any, and any

 

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other feedback provided by the Operating Advisor (and if no Consultation Termination Event is continuing, the Directing Certificateholder) in connection with the Special Servicer’s preparation of any Asset Status Report that is provided while an Operating Advisor Consultation Event has occurred and is continuing. The Special Servicer shall revise the Asset Status Report as it deems necessary to take into account any input and/or comments from the Operating Advisor (and if no Consultation Termination Event has occurred, the Directing Certificateholder), to the extent the Special Servicer determines that the Operating Advisor’s and/or the Directing Certificateholder’s input and/or recommendations are consistent with Accepted Servicing Practices and in the best interest of the Certificateholders as a collective whole. Promptly upon determining whether or not to revise any Asset Status Report to take into account any input and/or comments from the Operating Advisor or the Directing Certificateholder, the Special Servicer shall deliver to the Operating Advisor and the Directing Certificateholder the revised Asset Status Report (until a Final Asset Status Report is issued) or notice that the Special Servicer has decided not to revise such Asset Status Report, as applicable.

 

(m)       In connection with the approval or consultation rights of the Directing Certificateholder and the consultation rights of the Operating Advisor with respect to any Asset Status Report, if the Special Servicer determines that any action recommended in an Asset Status Report is necessary to protect the Property or the interests of the Certificateholders from potential harm if such action is not taken, or if a failure to take any such action at such time would be inconsistent with Accepted Servicing Practices, the Special Servicer may take actions with respect to the Property before the expiration of the 10 Business Day period if the Special Servicer reasonably determines in accordance with Accepted Servicing Practices that failure to take such actions before the expiration of the 10 Business Day period would materially adversely affect the interest of the Certificateholders, and the Special Servicer has made a reasonable effort to contact the Directing Certificateholder or the Operating Advisor, as applicable.

 

(n)       After the occurrence and during the continuance of a Control Event, the Directing Certificateholder shall have no right to consent to any Asset Status Report under this Section 3.10. After the occurrence and during the continuance of a Control Event but prior to the occurrence of a Consultation Termination Event, the Directing Certificateholder, and after the occurrence and during the continuance of an Operating Advisor Consultation Event, the Operating Advisor, shall consult with the Special Servicer (telephonically or electronically) and may propose alternative courses of action and provide other feedback in respect of any Asset Status Report. After the occurrence of a Consultation Termination Event, the Directing Certificateholder (other than in its capacity as a Certificateholder) shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to Asset Status Reports and the Special Servicer shall only be obligated to consult with the Operating Advisor with respect to any Asset Status Report as described above. The Special Servicer may choose to revise the Asset Status Report as it deems reasonably necessary in accordance with Accepted Servicing Practices to take into account any input and/or recommendations of the Operating Advisor or the Directing Certificateholder during the applicable periods described above, but is under no obligation to follow any particular recommendation of the Operating Advisor or the Directing Certificateholder. The consultation process with the Operating Advisor and any revisions to the Asset Status Report made by the Special Servicer in response to such consultation described in this section are collectively referred to as the “ASR Consultation Process”. The consent or consultation process with the Directing Certificateholder and any

 

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revisions to the Asset Status Report made by the Special Servicer in response to such consultation described in this section are collectively referred to as the “Directing Certificateholder Asset Status Report Approval Process”.

 

Notwithstanding anything herein to the contrary: (i) the Servicer or Special Servicer shall have no right or obligation to consult with or to seek and/or obtain consent, approval or direction from any Directing Certificateholder prior to or after acting or making any determination (and provisions of this Agreement requiring such consultation, consent or approval shall be of no effect) during the period following any resignation or removal of a Directing Certificateholder and before a replacement is selected and/or identified; and (ii) no advice, direction or objection from or by the Directing Certificateholder, as contemplated by Section 9.3, or pursuant to any other provision of this Agreement, as contemplated by this Agreement or the Co-Lender Agreement, may (and the Special Servicer may ignore and act without regard to any such advice, direction or objection that such Special Servicer has determined, in its reasonable, good faith judgment, would): (A) require or cause such Servicer or Special Servicer to violate applicable law, the terms of the Mortgage Loan Documents, the Co-Lender Agreement or this Agreement, including the Special Servicer’s obligation to act in accordance with Accepted Servicing Practices, (B) result in an Adverse REMIC Event, (C) expose the Trust, the Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor or any of their respective Affiliates, members, managers, officers, directors, employees or agents, to any claim, suit or liability or (D) materially expand the scope of the Servicer’s or Special Servicer’s responsibilities under this Agreement.

 

(o)       The Servicer and the Special Servicer shall comply with applicable law, the Accepted Servicing Practices, this Agreement, the Co-Lender Agreement and the Mortgage Loan Documents.

 

(p)       During the continuance of a Special Servicing Loan Event, the Special Servicer shall have the authority to meet with the Loan Parties and, subject to the rights of the Directing Certificateholder (so long as no Consultation Termination Event is continuing) and take any actions consistent with Section 3.24, Accepted Servicing Practices and the most recent Final Asset Status Report.

 

(q)       Upon request of any Certificateholder (or any Beneficial Owner, if applicable), which shall have provided the Certificate Administrator with an Investor Certification in the form of Exhibit K-1, the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the most current Final Asset Status Report that it has received from the Special Servicer.

 

(r)       In addition, during the continuance of a Special Servicing Loan Event, not later than 4:00 p.m. (New York time) on each Determination Date the Special Servicer shall prepare and deliver to the Servicer the CREFC® Special Servicer Loan File with respect to the Mortgage Loan.

 

(s)      The Special Servicer shall be required to deliver to the Servicer such reports and other information as the Servicer needs in its reasonable discretion to perform its

 

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obligations under this Agreement. In no event, however, shall the Special Servicer be required to deliver a summary of any interim or draft Asset Status Report.

 

3.11.       Maintenance of Insurance and Errors and Omissions and Fidelity Coverage. (a) The Servicer, consistent with Accepted Servicing Practices and the Mortgage Loan Documents, shall use efforts consistent with Accepted Servicing Practices to cause to be maintained by the Borrower (or if the Borrower fails to maintain such insurance in accordance with the Mortgage Loan Documents, the Servicer shall cause to be maintained to the extent such insurance is available at commercially reasonable rates, and to the extent the Trustee, as mortgagee, has an insurable interest) insurance with respect to the Property of the types and in the amounts required to be maintained by the Borrower under the Mortgage Loan Documents and to monitor the Borrower’s compliance with such insurance requirements. The cost of any such insurance maintained by the Servicer shall be advanced by the Servicer, as a Property Protection Advance unless it would be a Nonrecoverable Advance. Neither the Servicer nor the Special Servicer shall be required to maintain, and shall not cause the Borrower to be in default with respect to the failure of the Borrower to obtain, all-risk casualty insurance which does not contain any carve-out for terrorist or similar acts, if and only if the Special Servicer has (and, prior to the occurrence and continuance of a Control Event, with the consent of the Directing Certificateholder) determined, on an annual basis, that such failure is an Acceptable Insurance Default. Neither the Servicer nor the Special Servicer shall be required to obtain terrorism insurance pursuant to this Agreement to the extent the Borrower would not be obligated to maintain terrorism insurance under the Mortgage Loan Documents as in effect on the date thereof.

 

(b)          The Special Servicer, consistent with Accepted Servicing Practices and the Mortgage Loan Documents, shall cause to be maintained such insurance (including environmental insurance) with respect to any Foreclosed Property as the Borrower is required to maintain with respect to the Property referred to in subsection (a) of this Section or, at the Special Servicer’s election, coverage satisfying insurance requirements consistent with Accepted Servicing Practices. The cost of any such insurance with respect to Foreclosed Property shall be payable out of amounts on deposit in the Foreclosed Property Account or shall be advanced by the Servicer as a Property Protection Advance unless such Advance would be a Nonrecoverable Advance. Any such insurance (other than terrorism insurance, which shall be maintained to the extent required under subsection (a)) that is required to be maintained with respect to Foreclosed Property shall only be so required to the extent such insurance is available at commercially reasonable rates and the Trust has an insurable interest in the Foreclosed Property. If the Special Servicer requests the Servicer to make a Property Protection Advance in respect of the premiums due in respect of such insurance, the Servicer shall, as soon as practicable after receipt of such request, make such Property Protection Advance unless such Advance would be a Nonrecoverable Advance, and if the Servicer does not make such Advance, the Trustee (within 5 Business Days of its receipt of notice of the Servicer’s failure to make such Advance) shall make an Advance of the premiums to maintain such insurance; provided that, in each such case, such obligations shall be subject to the provisions of this Agreement concerning Nonrecoverable Advances, the Trustee as mortgagee having an insurable interest and the availability of such insurance at commercially reasonable rates.

 

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(c)       The Servicer or the Special Servicer, as applicable, may satisfy its obligations to cause insurance policies to be maintained by maintaining a master force placed or blanket insurance policy insuring against losses on the Property or the Foreclosed Property, as the case may be for which coverage is otherwise required to be maintained as set forth in the preceding subsections of this Section 3.11. The incremental cost of such insurance allocable to the Property or Foreclosed Property, if not borne by the applicable Loan Parties, shall be paid by the Servicer as a Property Protection Advance unless it would be a Nonrecoverable Advance. If such master force placed or blanket insurance policy contains a deductible clause, the Servicer or the Special Servicer, as applicable, shall be obligated to deposit in the Collection Account out of its own funds all sums that would have been deposited therein but for such clause to the extent any such deductible exceeds the deductible limitation that pertained to the Trust Loan, or in the absence of any such deductible limitation, the deductible limitation that is consistent with Accepted Servicing Practices.

 

(d)       Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense, and keep in full force and effect throughout the term of this Agreement, a blanket fidelity bond and an errors and omissions insurance policy with an insurance company with a claims-paying ability rating at least equal to (a) “A3” by Moody’s, (b) “A-” by Fitch, (c) “A-” by S&P, (d) “A-:VIII” by A.M. Best Company or (e) “A-” or its equivalent by KBRA (if rated by KBRA) (or such other rating as to which a Rating Agency Confirmation has been obtained) covering the directors, officers and employees of the Servicer or the Special Servicer, as applicable, in connection with its activities under this Agreement. Each such insurance policy shall protect the Servicer or the Special Servicer, as applicable, against losses resulting directly from forgery, theft, embezzlement, fraud, errors and omissions of such covered persons. Coverage of the Servicer or the Special Servicer under a policy or bond obtained by an Affiliate thereof and providing the coverage required by this Section 3.11(d) shall satisfy the requirements of this Section 3.11(d). The amount of coverage shall at least be equal to the coverage that is required by the applicable governmental authorities having regulatory power over the Servicer and Special Servicer. The amount of coverage shall be in such form and amount as are consistent with Accepted Servicing Practices. In the event that any such bond or policy ceases to be in effect, the Servicer or the Special Servicer, as applicable, shall obtain a comparable replacement bond or policy. Each shall use reasonable effort to cause each and every sub-servicer, if any, to maintain a blanket fidelity bond and an errors and omissions insurance policy meeting the requirements as described above. In lieu of the foregoing, but subject to this Section 3.11, the Servicer and Special Servicer shall be entitled to self-insure with respect to such risks so long as the long term debt obligations of the Servicer or Special Servicer, as applicable (or its immediate or remote parent) is rated at least “A3” by Moody’s, or at least its equivalent rating by KBRA (if then rated by KBRA).

 

(e)       No provision of this Section requiring such fidelity bond and errors and omissions insurance shall diminish or relieve the Servicer or the Special Servicer from its duties and obligations as set forth in this Agreement. The Trustee shall be entitled to request, upon receipt of a written request from any Certificateholder, and the Servicer and the Special Servicer shall each deliver or cause to be delivered to the Trustee, a certificate of insurance from the surety and insurer certifying that such insurance is in full force and effect. The Trustee will make any such certificate of insurance available to the requesting Certificateholder on a confidential basis.

 

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(f)           The Operating Advisor shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement an “errors and omissions” insurance policy with an insurance company with a claims-paying ability rating at least equal to (a) “A3” by Moody’s, (b) “A-” or its equivalent by KBRA (if then rated by KBRA) or (c) “A-:X” by A.M. Best, (or such other rating as to which a Rating Agency Confirmation has been obtained) covering the directors, officers and employees of the Operating Advisor in connection with its activities under this Agreement.

 

3.12.       Procedures with Respect to Defaulted Mortgage Loan; Realization upon the Property. (a) Following, and during the continuance of, a Special Servicing Loan Event, the Special Servicer on behalf of the Trustee (with notification to and consent of the Directing Certificateholder prior to the occurrence and continuance of a Control Event and upon consultation with the Directing Certificateholder after the occurrence and during the continuance of a Control Event but so long as no Consultation Termination Event has occurred, and upon consultation with the Operating Advisor after the occurrence and during the continuance of the Operating Advisor Consultation Event), for the benefit of the Certificateholders and the Companion Loan Holders, subject to the terms of the Mortgage Loan Documents, and the Co-Lender Agreement, shall promptly pursue the remedies set forth therein or such resolution as is otherwise available to the Special Servicer, each in accordance with Accepted Servicing Practices, including foreclosure or otherwise realization on the Property and the other collateral for the Mortgage Loan. In connection with any foreclosure, enforcement of the applicable Mortgage Loan Documents or other realization on the Collateral, the Special Servicer shall direct the Servicer to, and the Servicer shall, pay the costs and expenses in any such proceedings as a Property Protection Advance unless the Servicer determines, in accordance with Accepted Servicing Practices, that such Advance would constitute a Nonrecoverable Advance.

 

(b)          Any proposed acceleration of the Mortgage Loan and/or foreclosure on the Property shall be taken unless the Special Servicer waives such Mortgage Loan Event of Default (or modifies or amends the Mortgage Loan to cure the Mortgage Loan Event of Default), which the Special Servicer may do if such modification, waiver or amendment is consistent with Accepted Servicing Practices and does not cause either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC under the REMIC Provisions or subject either such Trust REMIC to any tax (other than a tax on “net income from foreclosure property” under Code Section 860G(c)).

 

(c)          In connection with such foreclosure as described in Section 3.12(a) or other realization on the Property, the Special Servicer shall follow Accepted Servicing Practices; provided, however, that the Special Servicer shall not be permitted to direct the Servicer, and neither the Special Servicer nor the Servicer shall be required, to expend its own funds to restore the Property damaged by an Uninsured Cause unless the Servicer or the Special Servicer, as applicable, permitted the related insurance policy to lapse in violation of its respective obligations hereunder. If the Servicer does expend its own funds to restore the Property damaged by an Uninsured Cause (which insurance policy did not lapse in violation of the Servicer’s obligations), such expense shall be a Property Protection Advance. In connection with any foreclosure, enforcement of the Mortgage Loan Documents or other realization on the Collateral, the Special Servicer shall direct the Servicer to, and the Servicer shall, pay the costs and expenses in any such proceedings as a Property Protection Advance unless the Servicer

 

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determines, in accordance with Accepted Servicing Practices, that such Advance would constitute a Nonrecoverable Advance.

 

(d)       In connection with any foreclosure or other acquisition, the Special Servicer shall request the Servicer to pay, and the Servicer shall pay, the out of pocket costs and expenses in any such proceedings as a Property Protection Advance unless the Servicer determines, in its sole discretion exercised in accordance with Accepted Servicing Practices, that such Advance would constitute a Nonrecoverable Advance. The Servicer shall be entitled to reimbursement of Advances (with interest at the Advance Rate) made pursuant to the preceding sentence in accordance with Section 3.23. Subject to Section 9.3(a), for so long as a Control Event is not continuing, while negotiating a workout with the Borrower, the Special Servicer shall pursue any such foreclosure action to but not including actual foreclosure until such negotiations, in the judgment of the Special Servicer and in accordance with Accepted Servicing Practices and subject to Section 9.3(a), are not reasonably likely to produce a greater recovery on a net present value basis than foreclosure.

 

(e)       Notwithstanding the foregoing, the Special Servicer may not foreclose on the Property on behalf of the Trust and the Companion Loan Holders and thereby cause the Trust to be the beneficial owner of the Property, or take any other action with respect to such Property that would cause the Trustee, on behalf of the Trust Fund and the Companion Loan Holders, to be considered to hold title to, to be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of the Property within the meaning of CERCLA or any comparable law, subject to the rights of the Directing Certificateholder to consent to and/or consult in respect of such action, as applicable, unless the Special Servicer has previously determined, based on a report prepared as a Trust Fund Expense by an independent person who regularly conducts site assessments for purchasers of comparable properties (a copy of such report to be provided to the Certificate Administrator, the Companion Loan Holders and the Trustee by the Special Servicer), that (i) the Property is in compliance with applicable environmental laws or that taking the remedial actions necessary to comply with such laws is reasonably likely to produce a greater recovery on a net present value basis than not taking such actions and (ii) there are no circumstances known to the Special Servicer relating to the use of hazardous substances or petroleum-based materials which require investigation or remediation, or that if such circumstances exist taking such remedial actions is reasonably likely to produce a greater recovery on a net present value basis than not taking such actions. The Special Servicer shall deliver a copy of any such report to the 17g-5 Information Provider in electronic format and the 17g-5 Information Provider shall make such report available to the Rating Agencies and NRSROs pursuant to Section 8.14(b). The Certificate Administrator shall post a copy of such report on the Certificate Administrator’s Website promptly upon receipt.

 

If the Special Servicer has so determined based on satisfaction of the criteria in this Section 3.12(e) that it would be in the best economic interest (as determined in accordance with Accepted Servicing Practices) of the Trust Fund and the Companion Loan Holders as a collective whole (taking into account the subordination of the B Note to the A Notes) to institute a foreclosure or take any other actions described in the immediately preceding paragraph, subject to the rights of (i) the Directing Certificateholder to consent to, and (ii) the Directing Certificateholder and the Operating Advisor to consult in respect of such action, as applicable, pursuant to the terms hereof the Special Servicer shall take such proposed action. The Special

 

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Servicer shall not foreclose upon or otherwise cause the Trust to acquire ownership of any Collateral other than the Property unless it receives an Opinion of Counsel (the cost of which shall be paid by the Servicer as a Property Protection Advance unless the Servicer determines that such Property Protection Advance would constitute a Nonrecoverable Advance) to the effect that such acquisition will not cause the imposition of a tax on the Upper-Tier REMIC or the Lower-Tier REMIC (other than a tax on “net income from foreclosure property” under Code Section 860G(c)) under the REMIC Provisions or cause the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding.

 

The Special Servicer shall direct the Servicer to, and the Servicer shall, advance the cost of any such compliance, containment, clean up or remediation as a Property Protection Advance unless the Servicer determines that such Advance would constitute a Nonrecoverable Advance.

 

(f)       The environmental site assessments contemplated by Section 3.12(e) shall be prepared by any Independent Person who regularly conducts environmental site assessments for purchasers of comparable properties, as determined by the Servicer in a manner consistent with Accepted Servicing Practices. The cost of each such environmental site assessment shall qualify as a Property Protection Advance and shall be advanced by the Servicer unless the Servicer determines that such Advance would constitute a Nonrecoverable Advance.

 

(g)      Notwithstanding any provision herein to the contrary, the Special Servicer shall not acquire and hold for the benefit of the Trust Fund any personal property (including any non-real property Collateral) pursuant to this Section 3.12 unless:

 

(i)       such personal property is incidental to real property (within the meaning of Section 856(e)(1) of the Code) so acquired by the Special Servicer; or

 

(ii)      the Special Servicer shall have obtained an Opinion of Counsel (the cost of which shall be paid by the Servicer as a Property Protection Advance unless the Servicer determines that such Property Protection Advance would constitute a Nonrecoverable Advance) to the effect that the holding of such personal property by the Trust Fund will not cause the imposition of a tax on the Upper-Tier REMIC or the Lower-Tier REMIC under the REMIC Provisions or cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that any Uncertificated Lower-Tier Interest or Certificate is outstanding (and such Opinion of Counsel may be premised on the designation hereby of any such personal property as being deemed part of an “outside reserve fund” (within the meaning of Treasury Regulations Section 1.860G-2(h)) with the owner of such personal property for federal income tax purposes to be designated at such time).

 

(h)       Notwithstanding any acquisition of title to the Property following a Mortgage Loan Event of Default under the Mortgage Loan and cancellation of the Mortgage Loan, the Trust Loan and each Companion Loan shall be deemed to remain outstanding and, in the case of the Trust Loan, held in the Trust, and in the case of the Companion Loans, held by the Companion Loan Holders, for purposes of the application of collections and shall be reduced only by collections net of expenses. For purposes of all calculations hereunder, so long as the

 

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Trust Loan and each Companion Loan shall be deemed to remain outstanding in accordance with the preceding sentence, (i) it shall be assumed that the unpaid principal balance of the Trust Loan and each Companion Loan immediately after any discharge is equal to the unpaid principal balance of the Trust Loan and such Companion Loan immediately prior to such discharge and (ii) Foreclosure Proceeds shall be applied as provided in Section 1.3(b) and the Co-Lender Agreement.

 

3.13.       Certificate Administrator and Trustee to Cooperate; Release of Items in Mortgage File. From time to time and as appropriate for the servicing of the Mortgage Loan or foreclosure of or realization on the Property, the Certificate Administrator shall, upon request of the Servicer or the Special Servicer and delivery to the Certificate Administrator of a request for release in the form of Exhibit B hereto, release or cause to be released any items from the Mortgage File to the Servicer or the Special Servicer, as the case may be, within the lesser of (i) seven (7) calendar days and (ii) five (5) Business Days of its receipt of the related request for release and the Trustee shall execute such documents furnished to it as shall be necessary to the prosecution of any such proceedings. Such request for release shall obligate the Servicer or the Special Servicer to (and the Servicer or Special Servicer, as applicable, shall) return such items to the Certificate Administrator when the need therefor by the Servicer or the Special Servicer no longer exists. The foregoing duties of the Certificate Administrator shall be performed by the Custodian.

 

3.14.       Title and Management of Foreclosed Property. (a) In the event that title to the Property is acquired for the benefit of the Certificateholders and the Companion Loan Holders in foreclosure or by deed-in-lieu of foreclosure or otherwise, the deed, certificate of sale or other comparable document shall be taken in the name of the Trustee, as trustee for the Certificateholders, or its nominee (which shall not include the Special Servicer), on behalf of the Trust Fund and the Companion Loan Holders or as otherwise contemplated pursuant to Section 8.10. Title may be taken in the name of a limited liability company wholly owned by the Trust and which is managed by the Special Servicer (the costs of which shall be advanced by the Servicer, provided that such Advance would not be a Nonrecoverable Advance). Promptly after such acquisition of title, the Special Servicer shall consult with counsel to determine when an Acquisition Date shall be deemed to occur under the REMIC Provisions with respect to the Property, the expense of such consultation being treated as a reimbursable expense of the Special Servicer related to the foreclosure. The Special Servicer, on behalf of the Trust Fund and the Companion Loan Holders, shall dispose of any Foreclosed Property held by the Trust Fund as expeditiously as appropriate in accordance with Accepted Servicing Practices, but in any event within the time period, and subject to the conditions, set forth in Sections 3.15 and 12.2. Subject to Sections 12.2 and 3.14(d), the Special Servicer shall hire on behalf of the Trust Fund and the Companion Loan Holders a Successor Manager to manage, conserve, protect and operate such Foreclosed Property for the Certificateholders and the Companion Loan Holders solely for the purpose of its prompt disposition and sale. In connection with such management and subject to Section 3.4(c)(vii), the Successor Manager shall be entitled to the REO Management Fee solely from the Foreclosed Property Account or the Collection Account pursuant to Section 3.4(c)(vii).

 

(b)          The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of any Foreclosed Property separate and apart from its

 

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own funds and general assets and shall establish and maintain with respect to any Foreclosed Property a Foreclosed Property Account pursuant to Section 3.6.

 

(c)          The Special Servicer shall have full power and authority, subject to Accepted Servicing Practices and the specific requirements and prohibitions of this Agreement, to do any and all things in connection with Foreclosed Property for the benefit of the Trust Fund and the Companion Loan Holders as a collective whole (taking into account the subordination of the B Note to the A Notes) on such terms as are appropriate and necessary for the efficient liquidation of such Foreclosed Property, so long as the Special Servicer deems such actions to be consistent with Accepted Servicing Practices.

 

The Special Servicer shall deposit or cause to be deposited on a daily basis in the related Foreclosed Property Account all properly identified revenues received with respect to Foreclosed Property, and the Special Servicer shall cause to be withdrawn therefrom funds necessary for the proper operation, management and maintenance of such Foreclosed Property and for other expenses related to the preservation and protection of such Foreclosed Property, including, but not limited to:

 

(i)           all insurance premiums due and payable in respect of such Foreclosed Property;

 

(ii)          all taxes, assessments, charges or other similar items in respect of such Foreclosed Property that could result or have resulted in the imposition of a lien thereon; and

 

(iii)         all costs and expenses necessary to preserve such Foreclosed Property, including the payment of ground rent, if any.

 

To the extent that amounts on deposit in the Foreclosed Property Account are insufficient for the purposes set forth in clauses (i) through (iii) above (and all similar amounts or expenses), the Special Servicer shall direct the Servicer to, and the Servicer shall, make a Property Protection Advance unless the Servicer determines, in accordance with Accepted Servicing Practices, that such Advance would constitute a Nonrecoverable Advance.

 

(d)          The Special Servicer, in the name of the Trust Fund, shall (subject to Section 3.14(a)) contract with any Successor Manager for the operation and management of Foreclosed Property; provided that no such contract shall impose individual liability on the Trustee or the Trust; provided, further, that:

 

(i)           the terms and conditions of any such contract shall not be inconsistent herewith;

 

(ii)          any such contract shall require, or shall be administered to require, that the Successor Manager (A) request that the Special Servicer pay from the Foreclosed Property Account all costs and expenses incurred in connection with the operation and management of the Foreclosed Property, and (B) remit all related revenues (net of such costs and expenses) to the Special Servicer, as soon as practicable but in no event later

 

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than the Business Day immediately following receipt, for deposit into the Foreclosed Property Account;

 

(iii)         none of the provisions of this Section 3.14 relating to any such contract or to actions taken through any such Successor Manager shall be deemed to relieve the Special Servicer of any of its ordinary and regularly recurring duties and obligations to the Trust Fund on behalf of the Certificateholders and the Companion Loan Holders with respect to the operation and management of the Foreclosed Property; and

 

(iv)         the Successor Manager shall be permitted to perform construction (including renovations) on the Foreclosed Property only if the construction was more than 10% complete at the time default on the Mortgage Loan became imminent.

 

The Special Servicer shall be entitled, and to the extent required by the REMIC Provisions, shall be required, to enter into an agreement with any Independent Contractor performing services for it related to its duties and obligations hereunder for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All REO Management Fees shall be Trust Fund Expenses payable from the Foreclosed Property Account or subject to reimbursement pursuant to Section 3.4(c)(vi). The Special Servicer agrees to monitor the performance of the Successor Manager and to enforce the obligations of the Successor Manager on behalf of the Trust Fund and the Companion Loan Holders. Expenses incurred by the Special Servicer in connection herewith shall qualify as Property Protection Advances.

 

(e)          On or before the last day of each Collection Period, the Special Servicer shall withdraw from the Foreclosed Property Account and deposit into the Collection Account the proceeds and collections received or collected since the preceding Remittance Date through the Business Day prior to the Remittance Date on or with respect to the Foreclosed Property (including any funds no longer needed in any reserves established as provided below), net of expenses paid therefrom and amounts reasonably expected to be needed to fund any reserves deemed necessary for the operation, preservation and protection of such Foreclosed Property in the event that the Foreclosed Property is a real property, including without limitation, the creation of reasonable reserves for working capital, repairs, replacements and necessary capital improvements and other related expenses.

 

3.15.       Sale of Foreclosed Property. (a) The Special Servicer, on behalf of the Trust Fund and the Companion Loan Holders, shall sell any Foreclosed Property as expeditiously as appropriate in accordance with Accepted Servicing Practices, but in no event later than the time period set forth in Section 12.2 in a manner provided under this Section 3.15.

 

(b)          If the Special Servicer or an Affiliate acquires any Foreclosed Property in the name of and on behalf of the Trust Fund and the Companion Loan Holders, the Special Servicer shall be empowered, subject to the Code and to the specific requirements and prohibitions of this Agreement, to do any and all things in connection with the management and operation of such Foreclosed Property in accordance with Accepted Servicing Practices, all on such terms and for such period as the Special Servicer deems to be in the best interest of the Certificateholders and the Companion Loan Holders as a collective whole, as if they constituted

 

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a single lender (taking into account the subordination of the B Note to the A Notes) and consistent with the REMIC Provisions.

 

(c)       Subject to the consent and consultation rights of the Directing Certificateholder, as applicable, the Special Servicer shall accept the highest cash offer for any Foreclosed Property received from any person. In no event may such offer be less the Mortgage Loan Purchase Price for such Foreclosed Property. In the absence of any offer and purchase of any Foreclosed Property at least equal to the Mortgage Loan Purchase Price for such Foreclosed Property, the Special Servicer shall accept the highest offer received from any Person that is determined by the Special Servicer to be a fair price for such Foreclosed Property. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any Foreclosed Property, the Special Servicer is required to take into account (in addition to the results of any appraisal, updated appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior nine months), among other factors, the period and amount of the occupancy level and physical condition of the Foreclosed Property and the state of the local economy. If the highest offeror is an Interested Person or any Certificateholder, then the Trustee shall determine the fairness of the highest offer based upon such Appraisal or, if no Appraisal has been obtained within the last nine (9) months, based on an Appraisal obtained at the expense of the Trust; provided that if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may designate an Independent Appraiser expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuation of or investment in comparable properties, which such expert shall be selected with reasonable care by the Trustee for the sole purpose of determining whether any such cash offer constitutes a fair price for the Foreclosed Property; provided, further, that if the Trustee so designates any such third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. Any such determination of a fair price of the Foreclosed Property by the Trustee shall be binding upon all parties. The reasonable costs of all Appraisals, inspection reports and broker opinions of value incurred by the Trustee in making such determination shall be reimbursable to it first, by the Servicer as an Advance, subject to the Servicer’s determination that such amounts are not Nonrecoverable Advances, and then, as a Trust Fund Expense. Notwithstanding the foregoing, and subject to the rights of the Directing Certificateholder and the Operating Advisor, the Special Servicer shall not be obligated to accept the highest cash offer if the Special Servicer determines, in accordance with Accepted Servicing Practices, that rejection of such offer would be in the best interests of the Certificateholders and the Companion Loan Holders (as a collective whole as if they constituted a single lender (taking into account the subordination of the B Note to the A Notes)), and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in accordance with Accepted Servicing Practices, that acceptance of such offer would be in the best interests of the Certificateholders and the Companion Loan Holders (as a collective whole)). For avoidance of doubt, the Directing Certificateholder may submit bids on the Foreclosed Property in the same manner and at the same time and place as any other bidder. Neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any Foreclosed Property.

 

(d)       Subject to the provisions of Sections 3.14 and 12.2, the Special Servicer shall act on behalf of the Trust Fund and the Companion Loan Holders in negotiating and taking any other action necessary or appropriate in connection with the sale of Foreclosed Property,

 

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including the collection of all amounts payable in connection therewith. Any sale of Foreclosed Property shall be without recourse to the Trustee, the Depositor, the Certificate Administrator, the Servicer, the Special Servicer, the Operating Advisor, the Trust or the Certificateholders and the Companion Loan Holders (except that any contract of sale and assignment and conveyance documents may contain customary warranties, so long as the only recourse for breach thereof is to the Trust) and if consummated in accordance with the terms of this Agreement, none of the Trustee, the Depositor, the Certificate Administrator, the Special Servicer or the Certificate Administrator shall have any liability to any Certificateholder with respect to the purchase price thereof accepted by the Special Servicer or the Trustee.

 

(e)       The proceeds of any sale effected pursuant to this Section 3.15, after deduction of the expenses incurred in connection therewith, shall be deposited in the Collection Account in accordance with Section 3.4(a).

 

(f)           Within 30 days of the sale of Foreclosed Property, if not previously included in a CREFC® Report provided by the Servicer or the Special Servicer, the Special Servicer shall provide to the Servicer, the Trustee, the Companion Loan Holders and the Certificate Administrator a statement of accounting for the Foreclosed Property, including, without limitation, (i) the date the Foreclosed Property was acquired in foreclosure or by deed-in-lieu of foreclosure or otherwise, (ii) the date of disposition of such Foreclosed Property, (iii) the gross sale price and related selling and other expenses, (iv) accrued interest with respect to the outstanding balance of the Mortgage Loan immediately prior to the acquisition of the Foreclosed Property, calculated from the date of acquisition to the disposition date, and (v) such other information as the Trustee, the Companion Loan Holders or Certificate Administrator may reasonably request.

 

(g)          If the Mortgage Loan is a Specially Serviced Mortgage Loan or the Property is a Foreclosed Property, the Servicer shall prepare and file on a timely basis the reports of foreclosures and abandonments of the Property required by Section 6050J of the Code and the reports of discharges of indebtedness income in respect of the Trust Loan and each Companion Loan required by Section 6050P of the Code.

 

 

(h)          The Special Servicer shall deliver to the Servicer such reports and other information as the Servicer needs in its reasonable discretion to perform its obligations under this Agreement.

 

3.16.       Sale of the Mortgage Loan.

 

(a)          (i) Within sixty (60) days after the occurrence of a Special Servicing Loan Event and notice of the occurrence is received by the Special Servicer, the Special Servicer shall order (but shall not be required to have received) an Appraisal. The Servicer shall promptly notify in writing the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Companion Loan Holders and the Directing Certificateholder (prior to the occurrence and continuance of a Consultation Termination Event) of the occurrence of such Special Servicing Loan Event. Upon delivery by the Servicer of the notice described in the preceding sentence, and subject to the rights of the Directing Certificateholder and the Operating Advisor, the Special Servicer may offer to sell to any Person the Mortgage Loan or may offer to

 

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purchase the Mortgage Loan, if and when the Special Servicer determines, consistent with Accepted Servicing Practices, that no satisfactory arrangements can be made for collection of delinquent payments thereon and such a sale would be in the best economic interests of the Trust and the Companion Loan Holders as a collective whole as if they constituted a single lender (taking into account the subordination of the B Note to the A Notes) on a net present value basis. The Special Servicer shall provide the Trustee, the Companion Loan Holders, the Certificate Administrator, the Operating Advisor and the Directing Certificateholder (prior to the occurrence of a Consultation Termination Event) not less than five (5) Business Days’ prior written notice of its intention to sell the Mortgage Loan, in which case the Special Servicer is required to accept the highest offer received from any Person, other than any Interested Person, for the Mortgage Loan so long as such offer is at least equal to the Mortgage Loan Purchase Price. At the Special Servicer’s option, if it has received no offer at least equal to the Mortgage Loan Purchase Price for the Mortgage Loan, an Interested Person (other than the Manager or any Borrower Affiliate) may purchase the Mortgage Loan at the Mortgage Loan Purchase Price. Any Companion Loan is to be sold together with the Trust Loan, subject to this Section 3.16 and any additional requirements set forth in the Co-Lender Agreement (including, without limitation, Section 5 of the Co-Lender Agreement).

 

(ii)       In the absence of any offer and purchase at least equal to the Mortgage Loan Purchase Price, the Special Servicer shall accept the highest offer received from any Person that is determined by the Special Servicer to be a fair price for the Mortgage Loan. In determining whether any offer from a person other than an Interested Person constitutes a fair price for any defaulted Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any appraisal, updated appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior nine months), among other factors, the period and amount of the occupancy level and physical condition of the Property and the state of the local economy. However, if the highest offeror is a Person who is the Depositor, the Servicer, the Special Servicer (or any independent contractor engaged by the Special Servicer), the Operating Advisor, the Certificate Administrator, the Directing Certificateholder (or any of its Affiliates), any Borrower Affiliate, an Other Depositor, the master servicer, the special servicer (or any independent contractor engaged by such special servicer) or the trustee for an Other Securitization Trust, a Companion Loan Holder or any known Affiliate of any of them (any such Person, an “Interested Person”), then the Trustee (based upon, among other things, the Appraisals ordered pursuant to the preceding paragraph, the cost of which shall be paid by the Servicer as a Property Protection Advance, and copied or otherwise delivered to the Trustee and any other information reasonably requested by the Trustee) shall determine if the highest offer is a fair price, and such determination shall be binding upon all parties; provided that no offer from an Interested Person shall constitute a fair price unless (A) it is the highest offer received and (B) if such offer is less than the applicable Mortgage Loan Purchase Price, at least two other offers are received from independent third parties. Any such determination shall be binding upon all parties. All reasonable costs and fees of the Trustee and any third party hired by the Trustee in accordance with this Agreement in making such determination shall be reimbursable to it first, by the Servicer as an Advance, or if the Servicer determines that such amounts are Nonrecoverable Advances, then as a Trust Fund Expense. The Directing Certificateholder may submit bids on the defaulted Trust Loan in the same manner and at the same time

 

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and place as any other bidder. If the Trustee designates any such third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. Neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase the Mortgage Loan.

 

(iii)         Notwithstanding anything contained in the preceding paragraph to the contrary, if an Interested Person offers to purchase the Mortgage Loan and the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and as a Trust Fund Expense) designate an Independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing or investing in loans similar to the Mortgage Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for the Mortgage Loan. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. Any such determination of a fair price of the Mortgage Loan by the Trustee shall be binding upon all parties. The reasonable fees of, and the reasonable costs of all Appraisals, inspection reports and broker opinions of value incurred by the Trustee or any such third party pursuant to this paragraph shall be covered by, and shall be reimbursable by, the Interested Person, and if such fees or costs are not reimbursed by such Interested Person, such expense shall be reimbursable as a Trust Fund Expense; provided that the Trustee shall not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee.

 

(iv)         The Special Servicer shall not be obligated to accept the highest offer if the Special Servicer determines, in accordance with Accepted Servicing Practices, that the rejection of such offer would be in the best interests of the Certificateholders and the Companion Loan Holders as a collective whole as if they constituted a single lender (taking into account the subordination of the B Note to the A Notes). In addition, the Special Servicer may accept a lower offer if it determines, in accordance with Accepted Servicing Practices, that the acceptance of such offer would be in the best interests of the Certificateholders and the Companion Loan Holders as collective whole as if they constituted a single lender (taking into account the subordination of the B Note to the A Notes) (for example if the prospective buyer making the lower offer is more likely to perform its obligations or the terms offered by the prospective buyer making the lower offer are more favorable in other respects), provided that the offeror is not the Special Servicer or a Person that is an Affiliate of the Special Servicer. The Special Servicer shall use efforts consistent with Accepted Servicing Practices to sell the Mortgage Loan prior to the Rated Final Distribution Date.

 

(v)          Unless and until the Mortgage Loan is sold pursuant to this Section 3.16(a), the Special Servicer shall pursue such other resolution strategies with respect to the Mortgage Loan, including, without limitation, workout and foreclosure, as the Special Servicer may deem appropriate, consistent with the Asset Status Report, Accepted Servicing Practices and the REMIC Provisions.

 

(b)          Prior to the occurrence and continuance of a Control Event, any sale of the Mortgage Loan by the Special Servicer shall be subject to the Directing Certificateholder’s

 

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consent rights (subject to limitations on such consent pursuant to Section 9.3 herein) and after the occurrence and continuance of a Control Event but prior to the occurrence of a Consultation Termination Event, any sale of the Mortgage Loan will be subject to the consultation rights of the Directing Certificateholder as described in Section 9.3 herein.

 

(c)          The right of the Special Servicer to purchase or sell the Mortgage Loan after the occurrence of a Special Servicing Loan Event shall terminate, and shall not be exercisable as set forth in clause (a) above (or if exercised but the purchase of the Mortgage Loan has not yet occurred, the Special Servicer’s right shall terminate and such exercise shall be of no further force or effect) if the Mortgage Loan is no longer delinquent as a result of any of the following: (i) the Special Servicing Loan Event has ceased pursuant to the terms of this Agreement, (ii) the Mortgage Loan has become subject to a fully executed agreement reflecting the terms of the workout arrangement or (iii) the Mortgage Loan has otherwise been resolved (including by a full or discounted pay-off).

 

(d)          Any sale of the Mortgage Loan shall be for cash only, and shall be in accordance with and subject to the provisions of the Co-Lender Agreement.

 

(e)          Notwithstanding anything to the contrary herein, the Special Servicer shall not sell the Mortgage Loan pursuant to Section 3.16(a) without the written consent of the Companion Loan Holders (provided that such consent is not required from a Companion Loan Holder if such Companion Loan Holder is the Borrower or an Affiliate of the Borrower) unless the Special Servicer has delivered to the Companion Loan Holders: (a) at least 15 Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the permitted sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the Loan File reasonably requested by such Companion Loan Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided, that such Companion Loan Holder may waive any of the delivery or timing requirements set forth in this sentence. The Companion Loan Holders will be permitted to make offers to purchase, and either such party is permitted to be the purchaser at any sale of, the Mortgage Loan.

 

3.17.       Servicing Compensation. (a) The Servicer shall be entitled to receive the Servicing Fee with respect to the Trust Loan, the Companion Loans and any Foreclosed Property payable monthly from the Collection Account from payments of interest on the Trust Loan or the Companion Loans or otherwise in accordance with and subject to Section 3.4(c)(iii); provided that if such collections on the Trust Loan and Companion Loan are not sufficient to pay all accrued and unpaid Servicing Fees on the Mortgage Loan upon the final liquidation of the Mortgage Loan, any accrued but unpaid Servicing Fees will be payable out of other amounts on deposit with respect to the Mortgage Loan in accordance with Section 3.4(c)(xi). The Servicer shall be entitled to retain as compensation any late payment charges and certain other customary charges and fees to the extent described below, as well as reimbursement for all other costs or

 

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expenses incurred by it in performing its duties hereunder other than: (i) fees of any sub-servicer and the expenses of any sub-servicer that would not be reimbursable to Servicer if such expenses were incurred by the Servicer; (ii) the cost of any fidelity bond or errors and omissions policy required by Section 3.11(d); (iii) overhead expenses of the Servicer including but not limited to those which may properly be allocable under the Servicer’s accounting system or otherwise to the Servicer’s activities under this Agreement or the income derived by it hereunder including the costs to the Servicer associated with employees of the Servicer performing services in connection with the obligations of the Servicer hereunder; and (iv) costs and expenses arising from the negligence, bad faith or willful misconduct of the Servicer (the “Servicer Customary Expenses”).

 

(b)       In addition, the Servicer shall be entitled to the following items as additional servicing compensation, to the extent that such items are actually collected on the Mortgage Loan: (i) (x) so long as the Mortgage Loan is not a Specially Serviced Mortgage Loan, 50% of the Modification Fees actually collected during the related Collection Period and paid in connection with a consent, approval or other action that the Servicer is not permitted to take or grant in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under this Agreement and (y) so long as the Mortgage Loan is not a Specially Serviced Mortgage Loan, 100% of the Modification Fees actually collected during the related Collection Period and paid in connection with a consent, approval or other action that the Servicer is permitted to take or grant in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under this Agreement; (ii) so long as the Mortgage Loan is not a Specially Serviced Mortgage Loan, 100% of Assumption Fees collected during the related Collection Period in connection with a consent, approval or other action that the Servicer is permitted to take or grant in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under this Agreement and 50% of Assumption Fees collected during the related Collection Period in connection with a consent, approval or other action that the Servicer is not permitted to take or grant in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under this Agreement; (iii) so long as the Mortgage Loan is not a Specially Serviced Mortgage Loan, 100% of Assumption Application Fees collected during the related Collection Period; (iv) so long as the Mortgage Loan is not a Specially Serviced Mortgage Loan, 100% of consent fees in connection with a consent that involves no modification, waiver or amendment of the terms of the Mortgage Loan and is paid in connection with a consent the Servicer is permitted to grant in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under this Agreement and 50% of consent fees in connection with a consent that involves no modification, waiver or amendment of the terms of the Mortgage Loan and is paid in connection with a consent that the Servicer is not permitted to grant in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under this Agreement; (v) any and all amounts collected for checks returned for insufficient funds; (vi) all or a portion of charges for beneficiary statements or demands actually paid by the Borrower; (vii) if the Mortgage Loan is not a Specially Serviced Mortgage Loan, 100% of other loan processing fees actually paid by the Borrower; (viii) interest or other income earned on deposits in the Collection Account or other accounts maintained by the Servicer (but only to the extent of the net investment earnings, if any, with respect to any such account for each Collection Period and, further, in the case of a servicing account or Reserve Account, only to the extent such interest or other income is not required to be paid to the Borrower under applicable law or under the Mortgage Loan Documents); (ix) 100% of late

 

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payment charges and net Default Interest that accrue when the Mortgage Loan is not a Specially Serviced Mortgage Loan to the extent not applied to pay other amounts in accordance with Section 3.4(c) and (x) 100% of defeasance fees.

 

(c)       If a Special Servicing Loan Event occurs and is continuing, the Special Servicer shall be entitled to receive a Special Servicing Fee with respect to the Mortgage Loan for so long as such Special Servicing Loan Event continues. The Special Servicer shall also be entitled to retain as compensation any late payment charges and certain other customary charges and fees to the extent described below, as well as reimbursement for all other costs or expenses incurred by it in performing its duties hereunder other than: (i) the cost of any fidelity bond or errors and omissions policy required by Section 3.11(d); (ii) overhead expenses of the Special Servicer including but not limited to those which may properly be allocable under the Special Servicer’s accounting system or otherwise to the Special Servicer’s activities under this Agreement or the income derived by it hereunder including the costs to the Special Servicer associated with employees of the Special Servicer performing services in connection with the obligations of the Special Servicer hereunder; and (iii) costs and expenses arising from the negligence, bad faith or willful misconduct of the Special Servicer (the “Special Servicer Customary Expenses”). If a Special Servicing Loan Event is terminated following resolution of such Special Servicing Loan Event by a written agreement with the Loan Parties negotiated by the Special Servicer, the Special Servicer shall be entitled to receive the Work-out Fee on all payments of principal and interest made on the Mortgage Loan following such written agreement for so long as another Special Servicing Loan Event does not occur. If the Special Servicer is terminated (other than for cause) or resigns after such written agreement is entered into and before or after the Special Servicing Loan Event is terminated, it shall retain the right to receive any and all Work-out Fees on all payments of principal and interest made on the Mortgage Loan following such written agreement (negotiated by such Special Servicer prior to its termination or resignation) for so long as another Special Servicing Loan Event does not occur. In addition, the Special Servicer shall be entitled to receive a Liquidation Fee with respect to Liquidated Property or the liquidation of the Specially Serviced Mortgage Loan whether through judicial foreclosure, sale or otherwise, or in connection with the sale, discounted payoff or other liquidation of the Specially Serviced Mortgage Loan or the Property as to which the Special Servicer receives Liquidation Proceeds, except that no Liquidation Fee shall be payable in connection with (i) any repurchase of the Trust Loan (or allocable portion thereof) by the Trust Loan Sellers or a Trust Loan Seller pursuant to the Trust Loan Purchase Agreement (so long as such repurchase occurs within the 90 day time period required by the Trust Loan Purchase Agreement for the Trust Loan Sellers or a Trust Loan Seller to cure or repurchase the Trust Loan or a portion of the Trust Loan, respectively (including any applicable extension period)), or (ii) a sale of the Trust Loan by the Special Servicer to the Servicer or the Special Servicer pursuant to Section 3.16 hereof. The Liquidation Fee shall be payable from, and shall be calculated using the related Net Liquidation Proceeds. Each of the foregoing fees shall be payable from funds on deposit in the Collection Account as provided in Section 3.4(a). Notwithstanding anything herein to the contrary, with respect to the Mortgage Loan and any amount collected in a Collection Period, the Special Servicer shall only be entitled to receive a Work-out Fee or a Liquidation Fee, but not both.

 

(d)       The Special Servicer shall also be entitled to the following items as additional special servicing compensation, to the extent that such items are actually collected on the Mortgage Loan: (i) if the Mortgage Loan is a Specially Serviced Mortgage Loan or with

 

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respect to a Foreclosed Property, 100% of Modification Fees actually collected during the related Collection Period; (ii) if the Mortgage Loan is not a Specially Serviced Mortgage Loan, 50% of Modification Fees collected during the related Collection Period in connection with a consent, approval or other action that the Servicer is not permitted to take or grant in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under this Agreement; (iii) if the Mortgage Loan is a Specially Serviced Mortgage Loan, 100% of Assumption Fees collected during the related Collection Period and if the Mortgage Loan is not a Specially Serviced Mortgage Loan, 50% of Assumption Fees collected during the related Collection Period in connection with a consent, approval or other action that the Servicer is not permitted to take or grant in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under this Agreement; (iv) if the Mortgage Loan is a Specially Serviced Mortgage Loan, 100% of Assumption Application Fees collected during the related Collection Period; (v) if the Mortgage Loan is a Specially Serviced Mortgage Loan, 100% of consent fees in connection with a consent that involves no modification, waiver or amendment of the terms of the Mortgage Loan and if the Mortgage Loan is not a Specially Serviced Mortgage Loan, 50% of consent fees in connection with a consent that involves no modification, waiver or amendment of the terms of the Mortgage Loan and is paid in connection with a consent that the Servicer is not permitted to grant in the absence of the consent or approval (or deemed consent or approval) of the Special Servicer under this Agreement; (vi) if the Mortgage Loan is a Specially Serviced Mortgage Loan, all or a portion of charges for beneficiary statements or demands and other loan processing fees actually paid by the Borrower; (vii) if the Mortgage Loan is a Specially Serviced Mortgage Loan, 100% of other loan processing fees actually paid by the Borrower; (viii) interest or other income earned on deposits in the Foreclosed Property Account (but only to the extent of the net investment earnings, if any, for each Collection Period); and (ix) 100% of late payment charges and Default Interest (to the extent not applied to pay other amounts pursuant to Section 3.4(c)) that accrue when the Mortgage Loan is a Specially Serviced Mortgage Loan.

 

(e)       Notwithstanding any other provision in this Agreement, neither the Servicer nor the Special Servicer, as applicable, shall be entitled to reimbursement for an expense incurred under this Agreement or in connection with the performance of its duties hereunder unless (i) the amount of such payment to the Servicer or the Special Servicer, as the case may be, is reimbursed to the Trust Fund by the Loan Parties (to the extent the Loan Parties are required to do so under the Mortgage Loan Agreement); (ii) failure of the Loan Parties to reimburse for such payment constitutes a Mortgage Loan Event of Default; (iii) such expense would qualify as an “unanticipated expense incurred by the REMIC” within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii) or is otherwise an unanticipated expense (it being understood that the Servicer Customary Expenses and the Special Servicer Customary Expenses are not unanticipated); or (iv) such reimbursement is expressly provided for herein or such expense is expressly described herein as a Trust Fund Expense.

 

(f)       Except as otherwise expressly provided herein, no transfer, sale, pledge or other disposition of the Servicer’s right to receive all or any portion of the servicing compensation (or the Special Servicer’s right to receive all or any portion of the Special Servicing Fee) provided for herein shall be made, and any such attempted transfer, sale, pledge or other disposition shall be void, unless such transfer is made to a successor Servicer or

 

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successor Special Servicer, as applicable, in connection with the assumption by such successor of the duties hereunder pursuant to Section 7.2.

 

(g)      As compensation for its activities hereunder, on each Distribution Date the Certificate Administrator shall be entitled to the Certificate Administrator Fee (including that portion which is payable to the Trustee as the Trustee Fee). Except as otherwise provided herein, the Certificate Administrator’s fee includes all routine expenses of the Trustee, the Certificate Administrator and the Authenticating Agent. Each of the Trustee’s and Certificate Administrator’s rights to the Certificate Administrator Fee (including that portion of the Certificate Administrator Fee that represents the Trustee Fee, which is payable to the Trustee) may not be transferred in whole or in part except in connection with the transfer of all of the Trustee’s or Certificate Administrator’s, as applicable, responsibilities and obligations under this Agreement.

 

(h)      [Reserved].

 

(i)       The Special Servicer and its Affiliates shall be prohibited from receiving or retaining any Disclosable Special Servicer Fees and any Disclosable Special Servicer Fees received by the Special Servicer or any of its Affiliates shall be remitted to the Servicer to be deposited by the Servicer into the Collection Account within two (2) Business Days of the receipt of such Disclosable Special Servicer Fees by the Special Servicer or its Affiliates.

 

(j)       With respect to each Distribution Date, the Special Servicer shall deliver or cause to be delivered to the Servicer on the Determination Date related to such Distribution Date, and the Servicer shall deliver to the Certificate Administrator, without charge, one Business Day prior to the Distribution Date an electronic report, which may include HTML, word or excel compatible format, clean and searchable PDF format or such other format as mutually agreeable between the Certificate Administrator, the Servicer and the Special Servicer that discloses and contains an itemized listing of any Disclosable Special Servicer Fees received by the Special Servicer or any of its Affiliates, if any, with respect to such Distribution Date.

 

3.18.   Reports to the Certificate Administrator; Account Statements.

 

(a)      The Servicer shall prepare, or cause to be prepared, and deliver to the Certificate Administrator, in an electronic format reasonably acceptable to the Certificate Administrator, consistent with Accepted Servicing Practices, not later than (i) 3:00 p.m. (New York time) two (2) Business Days prior to each Distribution Date, the CREFC® Loan Periodic Update File and CREFC® Appraisal Reduction Template, (ii) 1:00 p.m. (New York time) one (1) Business Day prior to each Distribution Date, any updated CREFC® Loan Periodic Update File, if applicable, and (iii) 3:00 p.m. (New York time) one (1) Business Day prior to each Distribution Date, the remaining CREFC® Reports.

 

The Servicer shall make the CREFC® Reports (except the CREFC® Bond Level Files, the CREFC® Collateral Summary File, the CREFC® Special Servicer File, the CREFC® Operating Statement Analysis Report and the CREFC® NOI Adjustment Worksheet) available (i) prior to the securitization of the Companion Loan, to the Companion Loan Holders on each Distribution Date; and (ii) following securitization of the Companion Loan, to the master

 

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servicer of the Other Securitization Trust no later than two (2) Business Days after the Determination Date.

 

The CREFC® Operating Statement Analysis Report and the CREFC® NOI Adjustment Worksheet shall be prepared by the Servicer (or by the Special Servicer, with respect to Specially Serviced Mortgage Loans or REO Property) on a quarterly and annual basis (commencing with the quarter ending March 31, 2019 and year ending December 31, 2018, each within 30 days after receipt by the Servicer or the Special Servicer, as applicable), and will be made available by the Servicer to the Certificate Administrator (with respect to Specially Serviced Mortgage Loans or REO Property, to the extent received from the Special Servicer) within 30 days after receipt by the Servicer or the Special Servicer, as applicable, of the financial statements, operating statements, rent rolls, or other information required to prepare (or, if previously prepared, update) the CREFC® Operating Statement Analysis Report and the CREFC® NOI Adjustment Worksheet, but will not be deemed to have been received by the Certificate Administrator until such time as it is actually received; provided, however, that any analysis or report with respect to the first calendar quarter of each year shall not be required to the extent provided in the then-current applicable CREFC® guidelines.

 

Additionally, the Servicer shall deliver the CREFC® Operating Statement Analysis Report and CREFC® NOI Adjustment Worksheet on a monthly basis to the Certificate Administrator; provided, however, the Servicer shall have no obligation to update such reports except as set forth in the immediately preceding paragraphs, and no analysis or update shall be required to the extent such analysis or update is not required to be provided under the then-current applicable CREFC® guidelines.

 

(b)       The Servicer shall furnish to the Certificate Administrator in electronic format the CREFC® Reports produced by it pursuant to this Agreement not later than the time period specified in Section 3.18(a), and thereafter, upon the request of any Rating Agency, to the 17g-5 Information Provider, who shall make such reports available to the Rating Agencies on its website.

 

(c)       The Servicer shall produce the reports described in this Section 3.18 solely from information provided to the Servicer by the Loan Parties pursuant to the Mortgage Loan Agreement (without modification, interpretation or analysis) or by the Special Servicer, the Trust Loan Sellers or Depositor pursuant to this Agreement. None of the Trustee, the Certificate Administrator, the Servicer or the Special Servicer shall be responsible for the completeness or accuracy of such information (except that the Servicer shall use efforts consistent with Accepted Servicing Practices to correct patent errors). The Special Servicer shall promptly deliver to the Servicer the CREFC® Special Servicer Loan File and any applicable CREFC® Loan Liquidation Reports, CREFC® Loan Modification Reports and CREFC® REO Liquidation Reports and the most recently prepared or updated CREFC® Operating Statement Analysis Report and CREFC® NOI Adjustment Worksheet with respect to the Mortgage Loan if it is a Specially Serviced Mortgage Loan and any REO Property in an electronic format, reasonably acceptable to the Servicer and the Special Servicer as of the Determination Date.

 

3.19.    [Reserved].

 

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3.20.       [Reserved].

 

3.21.       Access to Certain Documentation Regarding the Mortgage Loan and Other Information.

 

(a)          Upon reasonable advance notice, the Certificate Administrator or the Custodian, as applicable, shall provide reasonable access during its normal business hours at its Corporate Trust Office to certain reports and to information and documentation in its possession or in its control regarding the Mortgage Loan to any Privileged Person (other than a Borrower Affiliate, the Manager, or their respective agents or Affiliates); provided, however, that to the extent such reports, information and documentation is provided to a Rating Agency, the 17g-5 Information Provider shall first post such information to the Certificate Administrator’s Website. Such information shall include, but shall not be limited to, the CREFC® Reports provided to the Certificate Administrator by the Servicer.

 

(b)          Upon request of the Depositor or the Rating Agencies, the 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website any additional information requested by the Depositor or the Rating Agencies to the extent such information is delivered to the 17g-5 Information Provider electronically in accordance with Section 8.14(b). In no event shall the 17g-5 Information Provider disclose on the 17g-5 Information Provider’s Website which Rating Agency requested such additional information. In addition, upon delivery by the Depositor to the 17g-5 Information Provider (in an electronic format mutually agreed upon by the Depositor and the 17g-5 Information Provider) of information designated by the Depositor as having been previously made available to NRSROs by the Depositor prior to the Closing Date, the 17g-5 Information Provider shall post such information on the 17g-5 Information Provider’s Website pursuant to Section 8.14(b).

 

(c)          Upon the request of a Certificateholder or any Beneficial Owner or a prospective purchaser of a Certificate that is a QIB and is designated as a prospective purchaser by a Certificateholder or Beneficial Owner and, in any case, has delivered an Investor Certification in the form of Exhibit K-1 hereto to the Depositor and the Certificate Administrator (collectively, the “Rule 144A Information Recipients”), the Certificate Administrator shall make available to the Rule 144A Information Recipients such information as is specified pursuant to Rule 144A(d)(4) under the Act (“Rule 144A Information”), to the extent such Rule 144A Information has been received by the Certificate Administrator. If the Certificate Administrator receives a request for Rule 144A Information in connection with the resale of any Certificate by a Certificateholder or Beneficial Owner, and such Rule 144A Information has not previously been provided to the Certificate Administrator by the Depositor, the Certificate Administrator shall, within three (3) Business Days of receipt of such request, notify the Depositor of such request and identify the Rule 144A Information requested. The Depositor shall use commercially reasonable efforts to provide the requested Rule 144A Information to the Certificate Administrator, to the extent the requested Rule 144A Information is in the Depositor’s possession. The Certificate Administrator shall, within three (3) Business Days of receipt of any additional Rule 144A Information from the Depositor (i) convey such additional requested Rule 144A Information to the requesting Rule 144A Information Recipient and (ii) post such additional requested Rule 144A Information on the Certificate Administrator’s Website.

 

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3.22.       Inspections. (a) The Servicer shall inspect or cause to be inspected the Property not less frequently than once each year commencing in 2019, so long as a Special Servicing Loan Event is not then continuing. The Special Servicer shall inspect or cause to be inspected the Property, as applicable, promptly following the occurrence of a Special Servicing Loan Event and annually for so long as a Special Servicing Loan Event is continuing. The Servicer or the Special Servicer, as applicable, shall further inspect, or cause to be inspected, the Property whenever it receives information that the Property has been materially damaged, left vacant, or abandoned, or if waste is being committed thereto. All such inspections shall be performed in such manner as shall be consistent with Accepted Servicing Practices. The cost of the annual inspections referred to in the first sentence of this paragraph shall be an expense of the Servicer; the cost of all additional inspections referred to in this paragraph shall be a Trust Fund Expense and if paid by the Servicer shall constitute a Property Protection Advance or an Administrative Advance. The Servicer or Special Servicer, as the case may be, shall prepare a written report of inspection and deliver it to the Certificate Administrator and Companion Loan Holders in electronic format. The Certificate Administrator shall post such report on the Certificate Administrator’s Website pursuant to Section 8.14(b).

 

(b)          The Special Servicer, if the Mortgage Loan is a Specially Serviced Mortgage Loan, and the Servicer, if the Mortgage Loan is not a Specially Serviced Mortgage Loan, shall make reasonable efforts to collect promptly and review from the Borrowers quarterly and annual operating statements, financial statements, budgets and rent rolls of the Properties, and the quarterly and annual financial statements of such Borrowers, and any other reports or documents required to be delivered under the terms of the Mortgage Loan. The Servicer and the Special Servicer shall not be required to request such operating statements or rent rolls more than once if the Borrowers are not required to deliver such statements pursuant to the terms of the Mortgage Loan documents. The Servicer or Special Servicer, as applicable, shall deliver copies of any of the foregoing items so collected thereby, upon the request of any Rating Agency, to the 17g-5 Information Provider who shall post such items to the 17g-5 Information Provider’s Website.

 

3.23.       Advances. (a) In the event that all or a portion of any Monthly Payment (other than the Balloon Payment and Default Interest) or an Assumed Monthly Payment, as applicable, representing interest on the Trust Loan has not been received by the close of business on the Business Day immediately prior to any Remittance Date, the Servicer, subject to its determination that such amounts are not Nonrecoverable Advances, shall make an advance on such Remittance Date to the Distribution Account, in an amount equal to the interest portion of such Monthly Payment (or portion thereof) (or in the amount of the Assumed Monthly Payment, or portion thereof, as applicable) with respect to the Trust Loan that has not been received by the close of business on the Business Day immediately prior to such Remittance Date (net of the Servicing Fee with respect to the Trust Loan, which shall not be paid to the Servicer until funds in the Collection Account are available for payment of such fee); provided that neither the Servicer nor any other party shall be entitled to interest accrued on the amount of any Monthly Payment Advance with respect to the Trust Loan if the delinquent amount of the Monthly Payment (or, if applicable, the Assumed Monthly Payment) in respect of such Trust Loan is received by the Servicer or the Certificate Administrator, as applicable, by 2:00 p.m., New York time, on such Remittance Date. The portion of any Monthly Payment Advance equal to the CREFC® Intellectual Property Royalty License Fee for the Trust Loan and such Distribution

 

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Date will not be remitted to the Certificate Administrator but will be remitted to CREFC® by the Servicer. The Servicer shall also advance in respect of each Payment Date following (x) a delinquency in the payment of the Balloon Payment of the Trust Loan or foreclosure (or acceptance of a deed-in-lieu of foreclosure or comparable conversion) of the Mortgage Loan or (y) not later than the related Remittance Date, to the Distribution Account, the amount of any Assumed Monthly Payment deemed due with respect to the Trust Loan on such Payment Date. For the avoidance of doubt, in the event that the amount of interest and/or principal on the Trust Loan is reduced as a result of any modification to the Trust Loan, any Monthly Payment Advance made with respect to such modified Trust Loan shall be in such amounts as may be required as a result of such reduction. Notwithstanding anything to the contrary herein and subject to the determination of nonrecoverability provided in this Section 3.23, in the event that the Property becomes Foreclosed Property, the Servicer shall continue to make advances as required pursuant to this Section 3.23(a) with respect to each Payment Date following such event in an amount equal to the Monthly Payment or Assumed Monthly Payment, as applicable, due or deemed due with respect to the Trust Loan on such Payment Date, as if the Property had not become a Foreclosed Property and the Trust Loan continued to be outstanding. If and to the extent such information is not already included in the Distribution Date Statement for the month in which such Monthly Payment Advance is made, the Servicer shall notify the master servicer and trustee with respect to each Other Securitization Trust of the amount of any Monthly Payment Advance made pursuant to this Section 3.23(a) within two Business days of making such advance. The Servicer shall maintain a record of each Monthly Payment Advance it has made pursuant to this Section 3.23(a) on the Trust Loan and shall notify the Certificate Administrator thereof in the appropriate CREFC® Reports in order to permit allocation thereof pursuant to Sections 3.4 and 3.5. In the event that the Servicer does not remit any amounts required to be remitted to the Certificate Administrator on each Remittance Date (including any amounts required to be remitted pursuant to Section 3.5 and any required Monthly Payment Advance) to the Certificate Administrator for deposit in the Distribution Account on the Remittance Date, the Servicer shall pay to the Certificate Administrator interest on such amounts at the federal funds rate for the period from and including the Remittance Date to but excluding the Distribution Date or, if earlier, the actual remittance date.

 

At any time that a Trust Appraisal Reduction Amount exists with respect to the Mortgage Loan, the amount that would otherwise be required to be advanced by the Servicer in respect of delinquent payments of interest on the Trust Loan shall be reduced by multiplying such amount by a fraction, the numerator of which is the then-outstanding principal balance of the Trust Loan minus the Trust Appraisal Reduction Amount allocable to the Trust Loan (including any deemed Trust Appraisal Reduction Amount) and the denominator of which is the then-outstanding principal balance of the Trust Loan.

 

(b)       Subject to Section 3.23(e), the Servicer shall advance, for the benefit of the Certificateholders and the Companion Loan Holders, to the extent it determines that such amount is recoverable, all customary and reasonable out-of-pocket costs and expenses incurred by the Servicer or the Special Servicer in the performance of its respective servicing obligations, including, but not limited, to the costs and expenses incurred in connection with (i) the preservation, restoration, operation and protection of the Property which, in the Servicer’s sole discretion, exercised in accordance with Accepted Servicing Practices, are necessary to prevent an immediate or material loss to the Trust Fund’s interest in the Property, (ii) the payment of

 

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(A) real estate taxes, assessments, ground rents and governmental charges that may be levied or assessed against any Loan Party or any of its Affiliates or the Property or revenues therefrom or which become liens on the Property, (B) insurance premiums and (C) the out-of-pocket costs and expenses of the Servicer or the Special Servicer, as applicable (including, without limitation, reasonable attorneys’ fees and expenses) to the extent not paid by the applicable Loan Parties that are incurred in connection with a sale of the Mortgage Loan, the negotiation of a workout of the Mortgage Loan, an assumption of the Mortgage Loan or a release of the Property from the lien of the Mortgage, (iii) any enforcement or judicial proceedings, including foreclosures and including, but not limited to, court costs, reasonable attorneys’ fees and expenses and costs for third party experts, including Independent Appraisers, environmental and engineering consultants, and (iv) the management, operation and liquidation of the Property if the Property is acquired by the Trust (collectively, “Property Protection Advances”). In addition, subject to Section 3.23(e), the Servicer shall advance amounts eligible for withdrawal from the Collection Account pursuant to clauses (iii) (other than Servicing Fees), (v)(b), (vi) (to the extent reimbursements of such amounts are owed to the Trustee only), (vii), (ix) or (xi) of Section 3.4(c) (collectively, “Administrative Advances”) on or prior to the related Distribution Date to the extent (A) such amounts are not paid from the Collection Account pursuant to the second paragraph of Section 3.4(c) and (B) it determines that such amounts are payable or reimbursable by the Borrower and would not be a Nonrecoverable Advance. During the continuation of a Special Servicing Loan Event, the Special Servicer shall give the Servicer and the Trustee not less than five (5) Business Days’ written notice before the date on which the Servicer is requested to make any Property Protection Advance with respect to the Mortgage Loan or any Foreclosed Property; provided, however, that only three (3) Business Days’ written notice shall be required in respect of Property Protection Advances required to be made on an urgent or emergency basis (which may include, without limitation, Property Protection Advances required to make tax or insurance payments). In addition, the Special Servicer shall provide the Servicer with such information in its possession as the Servicer may reasonably request to enable the Servicer to determine whether a requested Property Protection Advance would constitute a Nonrecoverable Advance. Subject to Section 6.3, notwithstanding anything herein to the contrary, if the Special Servicer requests that the Servicer make an Advance, the Servicer may conclusively rely on such request as evidence that such advance is not a Nonrecoverable Advance; provided, however, that the Special Servicer shall not be entitled to make such a request more frequently than once per calendar month with respect to Advances other than emergency Advances (although such request may relate to more than one Advance). The Special Servicer shall not be obligated to make any Advance.

 

(c)       To the extent the Servicer fails to make an Advance that it is required to make under this Agreement, the Trustee shall be required to make such Advance pursuant to Section 7.6. It is understood that the obligation of the Servicer and the Trustee (pursuant to Section 7.6) to make such Advances is mandatory, subject to the limitations set forth in this Agreement (subject to the applicable recoverability determination), and shall continue to apply with respect to the Trust Loan after any modification or amendment of the Mortgage Loan pursuant to Section 3.24 hereof, beyond the Maturity Date of the Mortgage Loan if a payment default shall have occurred on such date and through any court appointed stay period or similar payment delay resulting from any insolvency of any Loan Party or related bankruptcy, notwithstanding any other provision of this Agreement, subject to the requirement of recoverability, until the earliest of (i) the payment in full of the Mortgage Loan, (ii) the date on

 

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which the Property becomes liquidated or (iii) the date on which the Mortgage Loan is sold. The Special Servicer shall not make any Advance.

 

(d)       Interest on each Advance made by the Servicer or the Trustee shall accrue for each day that such Advance is outstanding at a rate of interest equal to the Prime Rate (the “Advance Rate”) for each such day (or the most recent day on which the Prime Rate was reported, if not reported on such day) on the basis of a year of 360 days and the actual number of days elapsed in a month. Interest on the Advances shall compound annually. If the context requires, each reference to the reimbursement or payment of an Advance also includes, whether or not specifically referred to, payment or reimbursement of interest thereon at the Advance Rate through but excluding the date of payment or reimbursement.

 

(e)       Notwithstanding any other provision in this Agreement, the Servicer or the Trustee, as applicable, shall be obligated to make an Advance only to the extent that the Servicer or the Trustee, as applicable, has determined that such Advance, together with interest thereon at the Advance Rate, would not constitute a Nonrecoverable Advance if made. The Trustee and the Servicer, in that order, shall be entitled to reimbursement for any such Advances relating to the Trust Loan or the Mortgage Loan, as applicable, from the Collection Account and shall obtain such reimbursement in accordance with Section 3.4(c). If the context requires, each reference to the reimbursement or payment of an Advance shall be deemed to include, whether or not specifically referred to, payment or reimbursement of interest thereon at the Advance Rate through but excluding the date of payment or reimbursement.

 

(f)       The determination by the Servicer or the Trustee that it has made a Nonrecoverable Advance or that any proposed Advance, if made, would constitute a Nonrecoverable Advance, shall be evidenced by the delivery of an Officer’s Certificate in electronic format to the Companion Loan Holders, the Operating Advisor, the Certificate Administrator, the Trustee (if such determination is made by the Servicer), the Servicer and the Special Servicer, detailing the reasons for such determination with supporting documents attached. Such Officer’s Certificate shall be made available to any Privileged Person by the Certificate Administrator posting such Officer’s Certificate to the Certificate Administrator’s Website in accordance with Section 8.14(b). The costs of any appraisals, engineering reports, environmental reports or surveys and other information requested by the Servicer or the Trustee establishing an Advance as a Nonrecoverable Advance shall be treated as Trust Fund Expenses, payable from the Collection Account pursuant to Section 3.4(c), and shall constitute a Property Protection Advance or Administrative Advance, as applicable, if paid by the Servicer or the Trustee from its funds. Subject to Section 6.3, the Servicer’s reasonable determination of nonrecoverability in accordance with the above provisions shall be conclusive and binding on the Trustee and the Trustee shall be entitled to rely conclusively thereupon. The Trustee, in determining whether or not a proposed Advance would be a Nonrecoverable Advance, shall make such determination in its commercially reasonable judgment, solely in its capacity as Trustee.

 

(g)       The Servicer and the Trustee are not obligated to advance or pay (i) delinquent scheduled payments with respect to any Companion Loan, (ii) any Balloon Payment with respect to the Trust Loan (but are obligated to advance the related Assumed Monthly Payment in accordance with the terms of this Agreement), (iii) any Default Interest,

 

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Late Payment Charges or Yield Maintenance Default Premiums, (iv) amounts required to cure any damages resulting from Uninsured Causes (except as required pursuant to Section 3.12(c)), any failure of the Property to comply with any applicable law, including any environmental law, or (except in connection with the foreclosure or other acquisition of the Property in accordance with Section 3.12 upon the occurrence of a Mortgage Loan Event of Default) to investigate, test, monitor, contain, clean up, or remedy an environmental condition present at the Property, (v) any losses arising with respect to defects in the title to the Property or (vi) any costs of capital improvements to the Property other than those necessary to prevent an immediate or material loss to the Trust’s interest in the Property. In addition, the Servicer and the Trustee shall have no obligation to make any Monthly Payment Advances with respect to the Companion Loans.

 

(h)          The Servicer or the Trustee may consider (among other things) the following when making a non-recoverability determination: (a) the existence of any outstanding Nonrecoverable Advance (plus accrued and unpaid interest thereon) with respect to the Trust Loan, the Mortgage Loan or any Foreclosed Property the reimbursement of which, at the time of such consideration, is being deferred or delayed by the Servicer or the Trustee, (b) the obligations of the Borrower under the terms of the Mortgage Loan as it may have been modified, (c) the Property in its “as-is” or then-current conditions and occupancies, as modified by such party’s assumptions (consistent with Accepted Servicing Practices in the case of the Servicer and the Special Servicer or in its commercially reasonable judgment in the case of the Trustee, solely in its capacity as Trustee) regarding the possibility and effects of future adverse changes with respect to the Property, (d) future expenses and (e) the timing of recoveries.

 

3.24.       Modifications of Mortgage Loan Documents. (a) (i) The Servicer (if no Special Servicing Loan Event has occurred and is continuing) or the Special Servicer (if a Special Servicing Loan Event occurs and is continuing) may, subject to (x) the consent of the Directing Certificateholder (subject to limitations on such consent pursuant to Section 9.3(a) herein) prior to the occurrence and continuance of a Control Event, (y) the consultation and review rights of the Directing Certificateholder (subject to limitations on such rights pursuant to Section 9.3(a) herein) after the occurrence and during the continuance of a Control Event but prior to the occurrence of a Consultation Termination Event and (z) the consultation and review rights of the Operating Advisor after the occurrence and during the continuance of an Operating Advisor Consultation Event, modify, waive or amend any term of the Mortgage Loan if such modification, waiver or amendment (a) is consistent with Accepted Servicing Practices and (b) does not either (i) cause either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC under the Code or (ii) subject either such Trust REMIC to any tax under the REMIC Provisions (and the Servicer or the Special Servicer, as applicable, may obtain and be entitled to rely upon an Opinion of Counsel in connection with such determination). Notwithstanding anything herein to the contrary, in no event may the Servicer or the Special Servicer permit an extension of the Maturity Date beyond the date that is the earlier of (a) five (5) years prior to the latest Rated Final Distribution Date and (b) 20 years or, to the extent consistent with Accepted Servicing Practices giving due consideration to the remaining term of the ground lease, 10 years, prior to the end of the current term of the ground lease, plus any options to extend the ground lease exercisable unilaterally by the Borrower. In connection with (i) the release of the Property or portion thereof from the lien of the related Mortgage or (ii) the taking of the Property or portion thereof by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the Servicer or the Special Servicer, as

 

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applicable, to calculate the loan-to-value ratio of the remaining portion of the Property, for purposes of REMIC qualification of the Trust Loan, then, unless then permitted by the REMIC Provisions, such calculation shall exclude the value of personal property and going concern value, if any. The Servicer shall provide to the Special Servicer notice of all Borrower requests related to any Mortgage Loan modification or assumption and, so long as no Consultation Termination Event is continuing, the Special Servicer shall forward such notice to the Directing Certificateholder.

 

(b)       All modifications, waivers or amendments of the Mortgage Loan shall be in writing and shall be effected in a manner consistent with Accepted Servicing Practices, the REMIC Provisions and the provisions of the Co-Lender Agreement. The Servicer or the Special Servicer, as applicable, shall notify each other, the Trustee, the Certificate Administrator, the Companion Loan Holders, the Operating Advisor and the Depositor and, so long as no Consultation Termination Event has occurred, the Directing Certificateholder, in writing, of any modification, waiver or amendment of any term of the Mortgage Loan and the date thereof, and shall deliver to the Custodian (with a copy to the Trustee, the Operating Advisor and each Companion Loan Holder) an original recorded (if applicable) counterpart of the agreement relating to such modification, waiver or amendment within ten (10) Business Days following the execution and recordation (if applicable) thereof. In the event the Servicer or Special Servicer, or a court of competent jurisdiction in connection with a workout or proposed workout of the Mortgage Loan, modifies the interest rate applicable to the Mortgage Loan, the aggregate adverse economic effect of the modification (if any) required to be borne by the holders of the Trust Notes pursuant to the Co-Lender Agreement shall be applied to the Certificates, in reverse order of seniority. If all or any portion of the Mortgage Loan is modified, the Net Trust Note Rate shall not change for purposes of distributions on the Certificates.

 

(c)       Subject to Section 3.26, any modification of the Mortgage Loan Documents that requires a Rating Agency Confirmation pursuant to the Mortgage Loan Documents, or any modification that would eliminate, modify or alter the requirement of obtaining such Rating Agency Confirmation in the Mortgage Loan Documents, shall not be made without the Servicer’s or the Special Servicer’s, as applicable, first receipt of such Rating Agency Confirmation. Such Rating Agency Confirmation shall be obtained at the Loan Parties’ expense in accordance with the Mortgage Loan Agreement or, if not so provided in the Mortgage Loan Agreement or if the Loan Parties do not pay, as a Trust Fund Expense.

 

(d)       Notwithstanding the foregoing or anything to the contrary in Section 9.3, the Servicer and (if a Special Servicing Loan Event is continuing) the Special Servicer may, in accordance with Accepted Servicing Practices (without any Rating Agency Confirmation or consent of the Directing Certificateholder), grant the Borrower’s request for consent to subject the Property to an easement, right-of-way or similar agreement for utilities, access, parking, public improvements or another similar purpose and may consent to subordination of the Mortgage Loan to such easement, right-of-way or similar agreement. Neither the Servicer nor the Special Servicer may condition the granting of any of the above on receipt of Rating Agency Confirmation if such condition would not be consistent with or permitted by the Mortgage Loan Documents.

 

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(e)       Subject to Section 3.26 of this Agreement, prior to implementing any of the actions under the definition of RAC Decision, the Servicer or Special Servicer shall obtain a Rating Agency Confirmation from each Rating Agency.

 

(f)       Notwithstanding the foregoing, the Servicer shall not permit the substitution of the Property pursuant to the defeasance provisions of the Mortgage Loan Agreement unless such defeasance complies with Treasury Regulations Section 1.860G-2(a)(8)(ii) and the Servicer has (i) received replacement collateral consisting of government securities within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(ii), which satisfies the requirements of the Mortgage Loan Documents, in an amount sufficient to make all scheduled payments required under the terms of the Mortgage Loan when due, (ii) received a certificate of an Independent certified public accountant to the effect that such substituted property will provide cash flows sufficient to meet all payments of interest and principal (including payments at maturity) on the Mortgage Loan in compliance with the requirements of the terms of the Mortgage Loan Documents, (iii) received one or more Opinions of Counsel (at the expense of the related Borrower) to the effect that the Trustee, on behalf of the Trust Fund, will have a first priority perfected security interest in such substituted property; provided, however, that, to the extent consistent with the Mortgage Loan Documents, the Borrower shall pay the cost of any such opinion as a condition to granting such defeasance, (iv) to the extent consistent with the Mortgage Loan Documents, the Borrower shall have designated a single purpose entity to act as a successor mortgagor, if so required by the Rating Agencies, (v) to the extent permissible under the Mortgage Loan Documents, the Servicer shall use its reasonable efforts to require the Borrower to pay all costs of such defeasance, including but not limited to the cost of maintaining any successor mortgagor, and (vi) to the extent permissible under the Mortgage Loan Documents, the Servicer shall obtain, at the expense of the Borrower, Rating Agency Confirmation from each Rating Agency. If the Servicer receives notice of a request for defeasance with respect to the Mortgage Loan, the Servicer shall provide upon receipt of such notice, written notice of such defeasance request to each Trust Loan Seller or its respective assignee and until such time as a Trust Loan Seller provides written notice to the contrary, notice of a defeasance of the Mortgage Loan shall be delivered to such Trust Loan Seller pursuant to the notice provisions of the Trust Loan Purchase Agreement.

 

(g)       The Servicer shall deposit all payments received by it from defeasance collateral substituted for the Property into the Collection Account and treat any such payments as payments made on the Mortgage Loan in advance of its Payment Date, and not as a prepayment of the Mortgage Loan. The Servicer shall deposit all payments received by it from defeasance collateral substituted for the Property into the Collection Account and treat any such payments as payments made on the Mortgage Loan in advance of its Payment Date, and not as a prepayment of the Mortgage Loan. Notwithstanding anything herein to the contrary, in no event shall the Servicer permit such amounts to be maintained in the Collection Account for a period in excess of 365 days (or 366 days in the case of a leap year).

 

(h)       Subject to the terms of this Section 3.24, each of the Servicer and Special Servicer, respectively, shall be permitted in its sole discretion to waive all or any portion of Default Interest to the extent consistent with Accepted Servicing Practices. Failure to waive any Default Interest by the Servicer or Special Servicer shall not in any way be deemed a violation of Accepted Servicing Practices.

 

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3.25.       Conflicts of Interests; Mandatory Resignation of Servicer and Special Servicer May Own Certificates; Conflicts of Interest. (a) The Servicer, the Special Servicer and any agent thereof in its individual or any other capacity may become the owner or pledgee of Certificates with the same rights it would have if it were not the Servicer or the Special Servicer or such agent except as otherwise provided herein subject to the restrictions on voting set forth in the definition of Certificateholder.

 

(b)          Neither the Special Servicer nor any of its Affiliates shall resign from its obligations and duties as Servicer or Special Servicer, as applicable, under this Agreement, except as provided in Section 6.4 hereof. In the event that the Special Servicer becomes a Borrower Affiliate, the Special Servicer shall promptly notify the Trustee and the Certificate Administrator of such affiliation. Upon receipt of such notice, the Trustee shall promptly send a request to the Special Servicer requesting that the Special Servicer resign as Special Servicer and promptly appoint a replacement special servicer in accordance with Section 6.4 of this Agreement. In the event that no replacement Special Servicer is appointed within thirty (30) days for any reason after receipt by the Trustee of a notice of such affiliation, the Trustee may petition the court for appointment of a successor Special Servicer at the expense of resigning Special Servicer.

 

3.26.       The Operating Advisor.

 

(a)          The Operating Advisor shall review (i) the actions of the Special Servicer with respect to the Mortgage Loan when it is a Specially Serviced Mortgage Loan and the actions of the Special Servicer with respect to Major Decisions relating to the Mortgage Loan when it is not a Specially Serviced Mortgage Loan, (ii) all reports by the Special Servicer made available to Privileged Persons that are posted on the Certificate Administrator’s Website and (iii) each Asset Status Report and Final Asset Status Report delivered to the Operating Advisor by the Special Servicer. The Operating Advisor shall perform its duties hereunder in accordance with the Operating Advisor Standard. The Operating Advisor shall consider Accepted Servicing Practices in connection with its review of the Special Servicer activities hereunder, but in no case shall the Operating Advisor itself be bound by Accepted Servicing Practices.

 

(b)          The Operating Advisor and its Affiliates will be obligated to keep confidential any information appropriately labeled as “Privileged Information” received from the Special Servicer or the Directing Certificateholder in connection with the Directing Certificateholder’s exercise of its rights under this Agreement (including, without limitation, in connection with the review and/or approval of any Asset Status Report or Final Asset Status Report) or otherwise in connection with this transaction, except under the circumstances described in Section 3.26(f) and subject to any law, rule, regulation, order, judgment or decree requiring the disclosure of such Privileged Information. Subject to the terms and conditions in this Agreement related to Privileged Information, the Operating Advisor agrees that it shall use information received from the Special Servicer pursuant to the terms of this Agreement solely for purposes of complying with its duties and obligations hereunder.

 

(c)          (i) Based on the Operating Advisor’s review of (x) any assessment of compliance, attestation report and other reports delivered to the Operating Advisor by the Special Servicer made available to Privileged Persons that are posted on the Certificate Administrator’s

 

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Website during the prior calendar year, (y) prior to the occurrence and continuance of an Operating Advisor Consultation Event, with respect to the Mortgage Loan when it is a Specially Serviced Mortgage Loan, any Final Asset Status Report or Major Decision Reporting Package, and (z) after the occurrence and continuance of an Operating Advisor Consultation Event, any Asset Status Report and any Major Decision Reporting Package, the Operating Advisor shall (if, at any time during the prior calendar year, (A) the Mortgage Loan was a Specially Serviced Mortgage Loan or (B) there existed an Operating Advisor Consultation Event) deliver to the Certificate Administrator (which shall promptly post such report on the Certificate Administrator’s Website in accordance with Section 8.14(b)), the 17g-5 Information Provider (who shall post it to the 17g-5 Information Provider’s Website in accordance with Section 8.14(b)) and the Depositor within one hundred twenty (120) days of the end of the prior calendar year, an annual report (the “Operating Advisor Annual Report”), substantially in the form of Exhibit Z (which form may be modified or altered as to either its organization or content by the Operating Advisor, subject to compliance of such form with the terms and provisions of this Agreement including, without limitation, provisions herein relating to Privileged Information; provided, however, that in no event shall the information or any other content included in the Operating Advisor Annual Report contravene any provision of this Agreement), setting forth whether the Operating Advisor believes, in its sole discretion exercised in good faith, that the Special Servicer is operating in compliance with Accepted Servicing Practices with respect to its performance of its duties under this Agreement during the prior calendar year and identifying which, if any, standards the Operating Advisor believes, in its sole discretion exercised in good faith, the Special Servicer has failed to comply; provided, however, that in the event the Special Servicer is replaced, the Operating Advisor Annual Report shall only relate to such Special Servicer that was acting as Special Servicer as of December 31 in the prior calendar year and is continuing in such capacity through the date of such Operating Advisor Annual Report. Subject to the restrictions in this Agreement, including, without limitation, Section 3.26(d) hereof, each such Operating Advisor Annual Report shall (A) identify any deviations from (i) Accepted Servicing Practices and (ii) the Special Servicer’s obligations under this Agreement with respect to the resolution or liquidation of any Specially Serviced Mortgage Loan or Foreclosed Property and (B) comply with all of the confidentiality requirements described in this Agreement regarding Privileged Information (subject to a Privileged Information Exception). Such Operating Advisor Annual Report shall be delivered to the Certificate Administrator (which shall promptly post such Operating Advisor Annual Report on the Certificate Administrator’s Website in accordance with Section 8.14(b)) and the 17g-5 Information Provider (who shall post it to the 17g-5 Information Provider’s Website in accordance with Section 8.14(b)); provided, however, that the Special Servicer shall be given an opportunity to review the Operating Advisor Annual Report at least five (5) Business Days prior to its delivery to the Certificate Administrator and the 17g-5 Information Provider. In preparing the Operating Advisor Annual Report, the Operating Advisor shall not be required to report on instances of non-compliance with, or deviations from, the Accepted Servicing Practices or the