EX-4.3 5 exh4-3_pf1psa.htm 3650R 2021-PF1 PSA

Exhibit 4.3

 

EXECUTION VERSION

 

3650 REIT COMMERCIAL MORTGAGE SECURITIES II LLC,
as Depositor

 

MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION,
as Master Servicer

 

3650 REIT LOAN SERVICING LLC,
as Special Servicer

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Administrator and as Trustee

 

and

 

PARK BRIDGE LENDER SERVICES LLC,
as Operating Advisor and as Asset Representations Reviewer

 

POOLING AND SERVICING AGREEMENT

 

Dated as of

 

November 1, 2021

 

3650R 2021-PF1 Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates

 

Series 2021-PF1

 

 

 

 

TABLE OF CONTENTS

 

Page

Article I

 

DEFINITIONS

Section 1.01   Defined Terms 7
Section 1.02    Certain Calculations 120
Section 1.03    Certain Constructions 122

Article II

 

CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES

Section 2.01    Conveyance of Mortgage Loans 123
Section 2.02    Acceptance by Trustee 129
Section 2.03    Representations, Warranties and Covenants of the Depositor; Mortgage Loan Sellers’ Repurchase or Substitution of Mortgage Loans for Defects in Mortgage Files and Breaches of Representations and Warranties 134
Section 2.04    Execution of Certificates; Issuance of Lower-Tier Regular Interests; Issuance of the Westchester Loan REMIC Regular Interest and Lower-Tier Regular Interests 149
Section 2.05    Creation of the Grantor Trust 150

Article III

 

ADMINISTRATION AND SERVICING OF THE TRUST FUND

Section 3.01    The Master Servicer to Act as Master Servicer; Special Servicer to Act as Special Servicer; Administration of the Mortgage Loans, the Serviced Companion Loans and REO Properties 150
Section 3.02    Collection of Mortgage Loan Payments 157
Section 3.03    Collection of Taxes, Assessments and Similar Items; Servicing Accounts 162
Section 3.04    The Collection Account, the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Companion Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account and the Gain-on-Sale Reserve Account 167
Section 3.05    Permitted Withdrawals from the Collection Account, the Distribution Accounts and the Companion Distribution Account 174
Section 3.06    Investment of Funds in the Collection Account, the REO Account and Loss of Value Reserve Fund 185

 

 -i-

 

 

Section 3.07    Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage 186
Section 3.08    Enforcement of Due-on-Sale Clauses; Assumption Agreements 192
Section 3.09    Realization Upon Defaulted Loans and Companion Loans 196
Section 3.10    Trustee and Custodian to Cooperate; Release of Mortgage Files 200
Section 3.11    Servicing Compensation 201
Section 3.12    Inspections; Collection of Financial Statements 209
Section 3.13    Access to Certain Information 214
Section 3.14    Title to REO Property; REO Account 227
Section 3.15    Management of REO Property 229
Section 3.16    Sale of Defaulted Loans and REO Properties 231
Section 3.17    Additional Obligations of Master Servicer and Special Servicer 238
Section 3.18    Modifications, Waivers, Amendments and Consents 240
Section 3.19    Transfer of Servicing Between Master Servicer and Special Servicer; Recordkeeping; Asset Status Report 249
Section 3.20    Sub-Servicing Agreements 257
Section 3.21    Interest Reserve Account 260
Section 3.22    Directing Holder and Operating Advisor Contact with the Master Servicer and the Special Servicer 261
Section 3.23    Controlling Class Certificateholders and Directing Certificateholder; Certain Rights and Powers of Directing Holder 261
Section 3.24    Intercreditor Agreements 265
Section 3.25    Rating Agency Confirmation 268
Section 3.26    The Operating Advisor 270
Section 3.27    Companion Paying Agent 278
Section 3.28    Companion Register 279
Section 3.29    Certain Matters Relating to the Non-Serviced Mortgage Loans 279
Section 3.30    Delivery of Excluded Information to the Certificate Administrator 281
Section 3.31    Credit Risk Retention 281
Section 3.32    Resignation Upon Prohibited Risk Retention Affiliation 282
Section 3.33    Litigation Control 282
Section 3.34    Certain Matters with Respect to Joint Mortgage Loans 286

Article IV

 

distributions TO CERTIFICATEHOLDERS

Section 4.01    Distributions 291
Section 4.02    Distribution Date Statement; CREFC® Investor Reporting Packages; Grant of Power of Attorney 302
Section 4.03    P&I Advances 308
Section 4.04    Allocation of Realized Losses 310
Section 4.05    Appraisal Reduction Amounts; Collateral Deficiency Amounts 311
Section 4.06    Grantor Trust Reporting 316
Section 4.07    Investor Q&A Forum; Investor Registry; and Rating Agency Q&A Forum and Document Request Tool 318

 

 -ii-

 

 

Section 4.08    Secure Data Room 321

Article V

 

THE CERTIFICATES

Section 5.01    The Certificates 322
Section 5.02    Form and Registration 324
Section 5.03    Registration of Transfer and Exchange of Certificates 326
Section 5.04    Mutilated, Destroyed, Lost or Stolen Certificates 335
Section 5.05    Persons Deemed Owners 335
Section 5.06    Access to List of Certificateholders’ Names and Addresses; Special Notices 336
Section 5.07    Maintenance of Office or Agency 337
Section 5.08    Appointment of Certificate Administrator 337
Section 5.09    [Reserved] 338
Section 5.10    Voting Procedures 338

Article VI

 

THE DEPOSITOR, THE MASTER SERVICER, THE Special Servicer, the Operating Advisor, the asset representations reviewer AND THE DIRECTING Holder

Section 6.01    Representations, Warranties and Covenants of the Master Servicer, Special Servicer, the Operating Advisor and the Asset Representations Reviewer 339
Section 6.02    Liability of the Depositor, the Master Servicer, the Operating Advisor, the Special Servicer and the Asset Representations Reviewer 345
Section 6.03    Merger, Consolidation or Conversion of the Depositor, the Master Servicer, the Operating Advisor, the Special Servicer or the Asset Representations Reviewer 345
Section 6.04    Limitation on Liability of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer and Others 347
Section 6.05    Depositor, Master Servicer and Special Servicer Not to Resign 352
Section 6.06    Rights of the Depositor in Respect of the Master Servicer and the Special Servicer 352
Section 6.07    The Master Servicer and the Special Servicer as Certificate Owner 353
Section 6.08    The Directing Holder 353
Section 6.09    Knowledge of Wells Fargo Bank, National Association 360

 

 -iii-

 

 

Article VII

 

SERVICER TERMINATION EVENTS

Section 7.01    Servicer Termination Events; Master Servicer and Special Servicer Termination 361
Section 7.02    Trustee to Act; Appointment of Successor 369
Section 7.03    Notification to Certificateholders 371
Section 7.04    Waiver of Servicer Termination Events 371
Section 7.05    Trustee as Maker of Advances 372

Article VIII

 

CONCERNING THE TRUSTEE AND THE CERTIFICATE ADMINISTRATOR

Section 8.01    Duties of the Trustee and the Certificate Administrator 372
Section 8.02    Certain Matters Affecting the Trustee and the Certificate Administrator 373
Section 8.03    Trustee and Certificate Administrator Not Liable for Validity or Sufficiency of Certificates or Mortgage Loans 375
Section 8.04    Trustee or Certificate Administrator May Own Certificates 376
Section 8.05    Fees and Expenses of Trustee and Certificate Administrator; Indemnification of Trustee and Certificate Administrator 376
Section 8.06    Eligibility Requirements for Trustee and Certificate Administrator 378
Section 8.07    Resignation and Removal of the Trustee and Certificate Administrator 378
Section 8.08    Successor Trustee or Certificate Administrator 381
Section 8.09    Merger or Consolidation of Trustee or Certificate Administrator 381
Section 8.10    Appointment of Co-Trustee or Separate Trustee 382
Section 8.11    Appointment of Custodians 383
Section 8.12    Representations and Warranties of the Trustee 383
Section 8.13    Provision of Information to Certificate Administrator, Master Servicer and Special Servicer 384
Section 8.14    Representations and Warranties of the Certificate Administrator 384
Section 8.15    Compliance with the PATRIOT Act 386

Article IX

 

TERMINATION

Section 9.01    Termination upon Repurchase or Liquidation of All Mortgage Loans 386
Section 9.02    Additional Termination Requirements 390

Article X

 

ADDITIONAL REMIC PROVISIONS

Section 10.01    REMIC Administration 391

 

 -iv-

 

 

Section 10.02    Use of Agents 395
Section 10.03    Depositor, Master Servicer and Special Servicer to Cooperate with Certificate Administrator 395
Section 10.04    Appointment of REMIC Administrators 395

Article XI

 

EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE

Section 11.01    Intent of the Parties; Reasonableness 396
Section 11.02    Succession; Subcontractors 397
Section 11.03    Filing Obligations 399
Section 11.04    Form 10-D and Form ABS-EE Filings 400
Section 11.05    Form 10-K Filings 404
Section 11.06    Sarbanes-Oxley Certification 407
Section 11.07    Form 8-K Filings 408
Section 11.08    Form 15 Filing 410
Section 11.09    Annual Compliance Statements 410
Section 11.10    Annual Reports on Assessment of Compliance with Servicing Criteria 412
Section 11.11    Annual Independent Public Accountants’ Attestation Report 414
Section 11.12    [Reserved] 415
Section 11.13    Indemnification 415
Section 11.14    Amendments 418
Section 11.15    Regulation AB Notices 418
Section 11.16    Certain Matters Relating to the Future Securitization of the Serviced Pari Passu Companion Loans 418
Section 11.17    Impact of Cure Period 423

Article XII

 

the asset representations reviewer

Section 12.01    Asset Review 424
Section 12.02    Payment of Asset Representations Reviewer Fees and Expenses; Limitation of Liability 430
Section 12.03    Resignation of the Asset Representations Reviewer 431
Section 12.04    Restrictions of the Asset Representations Reviewer 431
Section 12.05    Termination of the Asset Representations Reviewer 431

Article XIII

 

MISCELLANEOUS PROVISIONS

Section 13.01    Amendment 434
Section 13.02    Recordation of Agreement; Counterparts 439
Section 13.03    Limitation on Rights of Certificateholders 440

 

 -v-

 

 

Section 13.04    Governing Law; Submission to Jurisdiction; Waiver of Jury Trial 441
Section 13.05    Notices 441
Section 13.06    Severability of Provisions 446
Section 13.07    Grant of a Security Interest 446
Section 13.08    Successors and Assigns; Third Party Beneficiaries 447
Section 13.09    Article and Section Headings 448
Section 13.10    Notices to the Rating Agencies 448
Section 13.11    PNC Bank, National Association 449

 

 -vi-

 

 

EXHIBITS

 

Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-3 Certificate
Exhibit A-3 Form of Class A-4 Certificate
Exhibit A-4 Form of Class A-5 Certificate
Exhibit A-5 Form of Class A-SB Certificate
Exhibit A-6 Form of Class X-A Certificate
Exhibit A-7 Form of Class X-B Certificate
Exhibit A-8 Form of Class X-D Certificate
Exhibit A-9 Form of Class A-S Certificate
Exhibit A-10 Form of Class B Certificate
Exhibit A-11 Form of Class C Certificate
Exhibit A-12 Form of Class D Certificate
Exhibit A-13 Form of Class E Certificate
Exhibit A-14 Form of Class F-RR Certificate
Exhibit A-15 Form of Class G-RR Certificate
Exhibit A-16 Form of Class J-RR Certificate
Exhibit A-16 Form of Class NR-RR Certificate
Exhibit A-17 Form of Class R Certificate
Exhibit A-18 Form of Class Z Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transferee Affidavit for Transfers of the Class R Certificates
Exhibit D-2 Form of Transferor Letter for Transfers of the Class R Certificates
Exhibit D-3 [Reserved]
Exhibit D-4 [Reserved]
Exhibit D-5 Form of Transferee Certificate for Transfers of the HRR Certificates
Exhibit D-6 Form of Transferor Certificate for Transfers of the HRR Certificates
Exhibit D-7 Form of Request of Retaining Sponsor Consent for Release of the HRR Certificates
Exhibit E Form of Request for Release
Exhibit F-1 Form of ERISA Representation Letter Regarding ERISA Restricted Certificates
Exhibit F-2 Form of ERISA Representation Letter Regarding Class R and Class Z Certificates
Exhibit G Form of Distribution Date Statement
Exhibit H Form of Omnibus Assignment
Exhibit I Form of Transfer Certificate for Rule 144A Book-Entry Certificate to Temporary Regulation S Book-Entry Certificate During Restricted Period
Exhibit J Form of Transfer Certificate for Rule 144A Book-Entry Certificate to Regulation S Book-Entry Certificate After Restricted Period
Exhibit K Form of Transfer Certificate for Temporary Regulation S Book-Entry Certificate to Rule 144A Book-Entry Certificate During Restricted Period

 

 -vii-

 

 

Exhibit L Form of Transfer Certificate for Temporary Regulation S Book-Entry Certificate to Regulation S Book-Entry Certificate After Restricted Period
Exhibit M Form of Transfer Certificate for Non-Book Entry Certificate to Temporary Regulation S Book-Entry Certificate
Exhibit N Form of Transfer Certificate for Non-Book Entry Certificate to Regulation S Book-Entry Certificate
Exhibit O Form of Transfer Certificate for Non-Book Entry Certificate to Rule 144A Book-Entry Certificate
Exhibit P-1A Form of Investor Certification for Non-Borrower Party (for Persons Other than the Directing Certificateholder and/or a Controlling Class Certificateholder)
Exhibit P-1B Form of Investor Certification for Non-Borrower Party (for the Directing Certificateholder and/or a Controlling Class Certificateholder)
Exhibit P-1C Form of Investor Certification for Borrower Party (for Persons other than the Directing Certificateholder and/or a Controlling Class Certificateholder)
Exhibit P-1D Form of Investor Certification for Borrower Party (for the Directing Certificateholder and/or a Controlling Class Certificateholder)
Exhibit P-1E Form of Notice of Excluded Controlling Class Holder
Exhibit P-1F Form of Notice of Excluded Controlling Class Holder to Certificate Administrator
Exhibit P-1G Form of Certification of the Directing Certificateholder
Exhibit P-1H [Reserved]
Exhibit P-2 Form of Certification for NRSROs
Exhibit P-3 Online Market Data Provider Certification
Exhibit Q Custodian Certification/Exception Report
Exhibit R-1 Form of Power of Attorney – Master Servicer
Exhibit R-2 Form of Power of Attorney –Special Servicer
Exhibit S Initial Serviced Companion Noteholders
Exhibit T Form of Notice Relating to the Non-Serviced Mortgage Loans
Exhibit U Form of Notice and Certification Regarding Defeasance of Mortgage Loan
Exhibit V Form of Operating Advisor Annual Report
Exhibit W Form of Notice from Operating Advisor Recommending Replacement of Special Servicer
Exhibit X Form of Confidentiality Agreement
Exhibit Y Form Certification to be Provided with Form 10-K
Exhibit Z-1 Form of Certification to be Provided to Depositor by Certificate Administrator
Exhibit Z-2 Form of Certification to be Provided to Depositor by Master Servicer
Exhibit Z-3 Form of Certification to be Provided to Depositor by Special Servicer
Exhibit Z-4 Form of Certification to be Provided to Depositor by Trustee
Exhibit Z-5 Form of Certification to be Provided to Depositor by Operating Advisor
Exhibit Z-6 Form of Certification to be Provided to Depositor by Custodian
Exhibit Z-7 Form of Certification to be Provided to Depositor by Asset Representations Reviewer

 

 -viii-

 

 

Exhibit AA Servicing Criteria to be Addressed in Assessment of Compliance
Exhibit BB Additional Form 10-D Disclosure
Exhibit CC Additional Form 10-K Disclosure
Exhibit DD Form 8-K Disclosure Information
Exhibit EE Additional Disclosure Notification
Exhibit FF Initial Sub-Servicers
Exhibit GG Servicing Function Participants
Exhibit HH Form of Annual Compliance Statement
Exhibit II Form of Report on Assessment of Compliance with Servicing Criteria
Exhibit JJ CREFC® Payment Information
Exhibit KK Form of Notice of Additional Indebtedness Notification
Exhibit LL [Reserved]
Exhibit MM Additional Disclosure Notification (Accounts)
Exhibit NN Form of Notice of Purchase of Controlling Class Certificate
Exhibit OO Form of Asset Review Report
Exhibit PP Form of Asset Review Report Summary
Exhibit QQ Form of Asset Review Procedures
Exhibit RR Form of Certification to Certificate Administrator Requesting Access to Secure Data Room
Exhibit SS Form of Notice of [Additional Delinquent Loan][Cessation of Delinquent Loan][Cessation of Asset Review Trigger]
Exhibit TT [Reserved]
Exhibit UU Form of Notice of a Form 8-K/A Filing
Exhibit VV Form of Certificate Administrator Receipt of the HRR Certificates
Exhibit WW Form of Payment Instructions for the HRR Certificates

 

 -ix-

 

 

SCHEDULES

 

Schedule 1 Mortgage Loans With Additional Debt

Schedule 2 Class A-SB Planned Principal Balance Schedule

Schedule 3 Mortgage Loans Subject to Loan Seller Defeasance Rights and Obligations

 

 -x-

 

 

This Pooling and Servicing Agreement is dated and effective as of November 1, 2021, among 3650 REIT Commercial Mortgage Securities II LLC, as Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, 3650 REIT Loan Servicing LLC, as Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator and as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer.

 

PRELIMINARY STATEMENT:

 

The Depositor intends to sell commercial mortgage pass-through certificates (collectively, the “Certificates”), to be issued hereunder in multiple classes (each, a “Class”), which in the aggregate will evidence the entire beneficial ownership interest in the Trust to be created hereunder, the primary assets of which will be a pool of commercial mortgage loans. As provided herein, the Certificate Administrator shall elect or shall cause an election to be made to treat designated portions of the Trust (exclusive of the Excess Interest and the proceeds thereof in the Excess Interest Distribution Account) 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” as described herein). In addition, one separate REMIC election was designated to be made with respect to one mortgage loan, any REO Property with respect thereto and the proceeds thereof for federal income tax purposes pursuant to a REMIC Declaration dated as of January 26, 2021 (the “Westchester Loan REMIC Declaration”), and such REMIC the “Westchester Loan REMIC”).

 

In addition, the parties intend that the portion of the Trust Fund consisting of the Class Z Specific Grantor Trust Assets shall be treated as a grantor trust (the “Grantor Trust”) for federal income tax purposes under subpart E, part I of subchapter J of the Code. The Class Z Certificates will represent undivided beneficial interests in the related portions of the Trust Fund consisting of the Class Z Specific Grantor Trust Assets. As provided herein, the Certificate Administrator shall take all actions expressly required hereunder to ensure that the portion of the Trust Fund consisting of the Grantor Trust maintains its status as a grantor trust under federal income tax law and not be treated as part of the Trust REMICs.

 

The Depositor intends to sell the Certificates to the Underwriters and the Placement Agents.

 

LOWER-TIER REMIC

 

The Lower-Tier REMIC will hold the Westchester Loan REMIC Regular Interest and the Mortgage Loans (exclusive of the Excess Interest and the proceeds thereof in the Excess Interest Distribution Account and exclusive of the assets held by the Westchester Loan REMIC) and will issue the Class LA-1, Class LA-3, Class LA-4, Class LA-5, Class LA-SB, Class LA-S, Class LB, Class LC, Class LD, Class LE, Class LF-RR, Class LG-RR, Class LJ-RR and Class LNR-RR Uncertificated Interests (the “Lower-Tier Regular Interests”), which will evidence the “regular interests” in the Lower-Tier REMIC created hereunder. The Lower-Tier REMIC will also issue the uncertificated Class LR Interest, which is the sole Class of “residual interests” in the

 

-1-

 

 

Lower-Tier REMIC for purposes of the REMIC Provisions and is represented by the Class R Certificates.

 

Pursuant to the Westchester Loan REMIC Declaration, the Westchester Loan REMIC has issued two classes of uncertificated regular interests (1) one of which has a principal balance of $75,000,000, an approximately 26.667% interest of which is to be held by the Lower-Tier REMIC and (2) the other of which has a principal balance of $25,000,000 (collectively, the “Westchester Loan REMIC Regular Interests”), which constitute the “regular interests” in the Westchester Loan REMIC, and a sole class of “residual interests” which is not part of the Trust Fund.

 

The Westchester Mortgage Loan, which will be contributed to the Trust, represents an approximately 26.667% ownership interest in the $75,000,000 Westchester Loan REMIC Regular Interest.

 

The following table sets forth the Original Lower-Tier Principal Amounts and per annum rates of interest for the Lower-Tier Regular Interests and the Class LR Interest:

 

Class Designation 

Interest Rate or Pass-Through Rate 

Original Lower-Tier
Principal Amount 

Class LA-1 (1) $ 26,952,000  
Class LA-3 (1) $ 141,041,000  
Class LA-4 (1) $ 125,000,000  
Class LA-5 (1) $ 327,298,000  
Class LA-SB (1) $ 22,719,000  
Class LA-S (1) $ 48,226,000  
Class LB (1) $ 43,633,000  
Class LC (1) $ 47,077,000  
Class LD (1) $ 29,854,000  
Class LE (1) $ 10,794,000  
Class LF-RR (1) $ 14,468,000  
Class LG-RR (1) $ 26,409,000  
Class LJ-RR (1) $ 11,482,000  
Class LNR-RR (1) $ 43,633,611  
Class LR None(2) None(2)

 

 

 

(1)The interest rate for such Class of Lower-Tier Regular Interests on any Distribution Date will be the WAC Rate for such Distribution Date.

 

(2)The Class LR Interest (evidenced by the Class R Certificates) will not have a Certificate Balance or Notional Amount, will not bear interest and will not be entitled to distributions of Yield Maintenance Charges. Any Available Funds remaining in the Lower-Tier REMIC Distribution Account after distributing the Lower-Tier Distribution Amount shall be deemed distributed to the Class LR Interest and be payable to the Holders of the Class R Certificates.

 

-2-

 

 

UPPER-TIER REMIC

 

The Upper-Tier REMIC will hold the Lower-Tier Regular Interests and will issue the Regular Certificates, which are designated as the “regular interests” in the Upper-Tier REMIC created hereunder. The Upper-Tier REMIC also will issue the uncertificated Class UR Interest, which is the sole Class of “residual interests” in the Upper-Tier REMIC for purposes of the REMIC Provisions and is represented by the Class R Certificates.

 

THE GRANTOR TRUST

 

The Class Z Certificates represent undivided beneficial interests in the Grantor Trust, which consists of the Class Z Specific Grantor Trust Assets. As provided herein, the Certificate Administrator shall not take any actions that would cause the portion of the Trust Fund consisting of the Grantor Trust (i) to fail to maintain its status as a “grantor trust” under federal income tax law or (ii) to be treated as part of any Trust REMIC.

 

THE CERTIFICATES

 

The following table (and related paragraphs) sets forth the designation, the pass-through rate (the “Pass-Through Rate”) and the aggregate initial principal amount (the “Original Certificate Balance”) or Notional Amount (the “Original Notional Amount”), as applicable, for each Class of Certificates:

 

-3-

 

 

Corresponding Certificates 

Initial Pass-Through Rate

Original
Certificate
Balance or
Notional Amount

 
Class A-1 Certificates 1.12200 % $ 26,952,000    
Class A-3 Certificates 1.99500 % $ 141,041,000    
Class A-4 Certificates 2.25300 % $ 125,000,000    
Class A-5 Certificates 2.52200 % $ 327,298,000    
Class A-SB Certificates 2.37200 % $ 22,719,000    
Class X-A Certificates 1.03852 %(1) $ 691,236,000 (2)  
Class X-B Certificates 0.38827 %(1) $ 90,710,000( (2)  
Class A-S Certificates 2.77800 % $ 48,226,000    
Class B Certificates 2.71700 % $ 43,633,000    
Class C Certificates 3.21300 % $ 47,077,000    
Class X-D Certificates 1.11269 %(1) $ 40,648,000 (2)  
Class D Certificates 2.25000 % $ 29,854,000    
Class E Certificates 2.25000 % $ 10,794,000    
Class F-RR Certificates 3.36269 % $ 14,468,000    
Class G-RR Certificates 3.36269 % $ 26,409,000    
Class J-RR Certificates 3.36269 % $ 11,482,000    
Class NR-RR Certificates 3.36269 % $ 43,633,611    
Class Z Certificates(3) N/A   N/A  
Class R Certificates(3) N/A   N/A  

 

 

 

(1)The Pass-Through Rate for the Class X-A Certificates will be calculated in accordance with the definition of “Class X-A Pass-Through Rate”. The Pass-Through Rate for the Class X-B Certificates will be calculated in accordance with the definition of “Class X-B Pass-Through Rate”. The Pass-Through Rate for the Class X-D Certificates will be calculated in accordance with the definition of “Class X-D Pass-Through Rate”.

 

(2)None of the Class X-A, Class X-B or Class X-D Certificates will have a Certificate Balance; rather, each such Class of Certificates will accrue interest as provided herein on its related Notional Amount.

 

(3)Neither the Class R nor the Class Z Certificates will have a Certificate Balance or a Notional Amount, bear interest or be entitled to distributions of Yield Maintenance Charges. Any Available Funds remaining in the Upper-Tier REMIC Distribution Account (after all required distributions under this Agreement have been made to each Class of Regular Certificates) shall be deemed distributed to the Class UR Interest and be payable to the Holders of the Class R Certificates.

 

3650 REIT 2 PF-1 BHE LLC is purchasing from the Underwriters or the Placement Agents, as the case may be, is purchasing from the Placement Agents all of the Class F-RR, Class G-RR, Class J-RR and Class NR-RR Certificates. The Certificates that 3650 REIT 2 PF-1 BHE LLC is purchasing are referred to in this Agreement collectively as the “HRR Certificates”.

 

As of the close of business on the Cut-off Date, the Mortgage Loans had an aggregate principal balance, after application of all payments of principal due on or before such date, whether or not received, equal to $918,586,612.

 

-4-

 

 

WHOLE LOANS

 

Whole Loan 

Type 

Non-Serviced PSA/TSA 

Note Name 

Control Note/Non-Control Note 

Note Cut-off Date Balance 

Note Holder(1) 

CX - 350 & 450 Water Street Non-Serviced  CAMB 2021-CX2

Note A-1-1

Note A-1-2

Note A-1-3

Note A-1-4

Note A-1-5

Note A-1-6

Note A-1-7

Note A-1-8

Note A-1-9

Note A-2-1

Note A-2-2

Note A-2-3

Note A-2-4

Note A-2-5

Note A-3-1

Note A-3-2

Note A-3-3

Note A-4-1

Note A-4-2

Note A-4-3

Note B-1(2)

Note B-2(2)

Note B-3(2)

Note B-4(2)

Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

$169,255,102

$71,000,000

$64,000,000

$50,000,000

$45,000,000

$35,000,000

$25,000,000

$20,000,000

$4,161,224

$58,163,265

$50,000,000

$30,000,000

$25,000,000

$2,959,184

$29,081,633

$30,000,000

$23,979,592

$28,500,000

$30,000,000

$22,900,000

$244,083,673

$83,877,551

$41,938,776

$41,100,000

CAMB 2021-CX2

DBRI

Benchmark 2021-B30

DBRI

DBRI

DBRI

3650R 2021-PF1

DBRI

DBRI

CAMB 2021-CX2

Bank of America

Bank of America

Bank of America

Bank of America

CAMB 2021-CX2

Benchmark 2021-B30

JPMCB

CAMB 2021-CX2

3650R 2021-PF1

3650R 2021-PF1

CAMB 2021-CX2

CAMB 2021-CX2

CAMB 2021-CX2

CAMB 2021-CX2

Plaza La Cienega Serviced N/A

Note A-1

Note A-2

Note A-3

Control

Non-Control

Non-Control

$50,000,000

$20,000,000

$20,000,000

3650R 2021-PF1

Benchmark 2021-B30

CREFI

Huntsville Office Portfolio Serviced N/A

Note A-1-1

Note A-1-2

Note A-1-3

Note A-2-1

Note A-2-2

Note A-2-3

Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

$14,930,700

$14,930,700

$9,953,800

$14,930,700

$14,930,700

$9,953,800

3650R 2021-PF1

Benchmark 2021-B28

3650R 2021-PF1

Benchmark 2021-B28

3650R 2021-PF1

3650R 2021-PF1

The Westchester Non-Serviced CSMC 2020-WEST

Note A-1

Note A-2-A

Note A-2-B

Note A-2-C

Note A-3-A

Note A-3-B

Note B-1(2)

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Control

$193,000,000

$35,000,000

$20,000,000

$20,000,000

$50,000,000

$25,000,000

$57,000,000

CSMC 2020-WEST

CSAIL 2021-C20

WFCM 2021-C60

3650R 2021-PF1

CSAIL 2020-C19

3650R 2021-PF1

CSMC 2020-WEST

Patewood Corporate Center Serviced N/A

Note A-1

Note A-2

Control

Non-Control

$30,000,000

$38,500,000

3650R 2021-PF1

3650 REIT

2 Washington Non-Serviced Benchmark 2021-B29

Note A-1

Note A-2

Note A-3

Note A-4

Note A-5

Control

Non-Control

Non-Control

Non-Control

Non-Control

$50,000,000

$30,000,000

$25,000,000

$16,500,000

$10,000,000

Benchmark 2021-B29

Benchmark 2021-B29

Benchmark 2021-B28

3650R 2021-PF1

3650R 2021-PF1

One SoHo Square Non-Serviced SOHO 2021-SOHO

Note A-1-S

Note A-1-C-1

Note A-1-C-2

Note A-1-C-3

Note A-1-C-4

Note A-1-C-5

Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

$685,083

$53,950,000

$75,000,000

$50,000,000

$50,000,000

$50,000,000

SOHO 2021-SOHO

Benchmark 2021-B28

Wells Fargo Bank

Benchmark 2021-B28

Benchmark 2021-B29

BBCMS 2021-C11

 

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Whole Loan 

Type 

Non-Serviced PSA/TSA 

Note Name 

Control Note/Non-Control Note 

Note Cut-off Date Balance 

Note Holder(1) 

     

Note A-1-C-6

Note A-1-C-7

Note A-1-C-8

Note A-2-S

Note A-2-C-1

Note A-2-C-2

Note A-2-C-3

Note A-2-C-4

Note A-2-C-5

Note A-2-C-6

Note A-3-S

Note A-3-C-1

Note A-3-C-2

Note A-3-C-3

Note B-1(2)

Note B-2(2)

Note B-3(2)

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

Non-Control

$20,000,000

$20,000,000

$2,353,868

$204,420

$21,050,000

$20,000,000

$19,646,132

$16,000,000

$10,000,000

$9,176,796

$110,497

$24,000,000

$16,000,000

$11,823,204

$215,801,105

$64,392,265

$34,806,630

BBCMS 2021-C11

Benchmark 2021-B29

Benchmark 2021-B29

SOHO 2021-SOHO

Benchmark 2021-B28

Benchmark 2021-B29

Benchmark 2021-B29

3650R 2021-PF1

Benchmark 2021-B28

3650R 2021-PF1

SOHO 2021-SOHO

MSC 2021-L7

MSC 2021-L7

MSC 2021-L7

SOHO 2021-SOHO

SOHO 2021-SOHO

SOHO 2021-SOHO

Icon One Daytona Serviced N/A

Note A-1

Note A-2

Control

Non-Control

$25,000,000

$25,000,000

3650R 2021-PF1

3650 REIT

PetSmart HQ Serviced N/A

Note A-1

Note A-2

Note A-3

Control

Non-Control

Non-Control

$23,000,000

$22,650,000

$22,350,000

3650R 2021-PF1

3650 REIT

3650 REIT

Centene Serviced N/A

Note A-1

Note A-2

Note A-3

Control

Non-Control

Non-Control

$15,600,000

$15,600,000

$15,600,000

3650R 2021-PF1

3650 REIT

3650 REIT

 

 

 

(1)Or an equivalent entity. Notes for which “3650R 2021-PF1” is indicated as the Note Holder constitute the corresponding Mortgage Loan. All other notes are “Companion Loans”.

 

(2)Such note is a “Subordinate Companion Loan”.

 

Each of the Whole Loans listed above consists of the corresponding Mortgage Loan and Companion Loan(s) listed next to such Whole Loan. With respect to any Whole Loan, each of the Mortgage Loan and the Pari Passu Companion Loan(s) are pari passu with each other to the extent provided in the related Intercreditor Agreement, and any Subordinate Companion Loan(s) is generally subordinate to the related Mortgage Loan and any Pari Passu Companion Loan(s) to the extent provided in the related Intercreditor Agreement. Each Serviced Whole Loan will be serviced and administered in accordance with this Agreement and the related Intercreditor Agreement. Each Non-Serviced Whole Loan will be serviced and administered in accordance with the related Non-Serviced PSA and the related Intercreditor Agreement.

 

The Companion Loans are not part of the Trust Fund. Each Companion Loan is secured by the Mortgaged Property that secures the related Mortgage Loan that is part of the Trust Fund. Amounts attributable to any Companion Loan will not be part of the Trust Fund and (except to the extent that such amounts are payable or reimbursable to any party to this Agreement) will be owned by the related Companion Holders.

 

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

 

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Article I

DEFINITIONS

 

Section 1.01        Defined Terms. Whenever used in this Agreement, including in the Preliminary Statement, the following capitalized terms, unless the context otherwise requires, have the meanings specified in this Article.

 

10-K Filing Deadline”: As defined in Section 11.05(a).

 

15Ga-1 Notice”: As defined in Section 2.02(g).

 

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

 

17g-5 Information Provider’s Website”: The 17g-5 Information Provider’s Internet website, initially located within the Certificate Administrator’s Website (initially, “www.ctslink.com”), under the “NRSRO” tab on the page relating to this transaction.

 

2 Washington Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of August 19, 2021, by and between the holders of the respective promissory notes evidencing the 2 Washington Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

30/360 Mortgage Loans”: The Mortgage Loans indicated as such in the Mortgage Loan Schedule.

 

3650 REIT”: 3650 Real Estate Investment Trust 2 LLC, a Delaware limited liability company, and its successors in interest.

 

520 Almanor Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of November 16, 2021, by and between the holders of the respective promissory notes evidencing the 520 Almanor Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

AB Modified Loan”: Any Corrected Loan (1) that became a Corrected Loan (which includes for purposes of this definition any Non-Serviced Mortgage Loan that became a “corrected loan” (or any term substantially similar thereto) pursuant to the related Non-Serviced PSA) due to a modification thereto that resulted in the creation of an A/B note structure (or similar structure) and as to which the new junior note(s) did not previously exist or the principal amount of the new junior note(s) was previously part of either an A note held by the Trust or the original unmodified Mortgage Loan and (2) as to which an Appraisal Reduction Amount is not in effect.

 

AB Whole Loan”: Each Whole Loan that is indicated as having a “Subordinate Companion Loan” in the “Whole Loan” chart in the Preliminary Statement.

 

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AB Whole Loan Controlling Holder”: With respect to a Serviced AB Whole Loan, the “Directing Lender” or similarly defined party identified in the related Intercreditor Agreement.

 

Accelerated Mezzanine Loan Lender”: A mezzanine lender under a mezzanine loan that has been accelerated or as to which foreclosure or enforcement proceedings have been commenced against the equity collateral pledged to secure such mezzanine loan.

 

Acceptable Insurance Default”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Whole Loan, a default under the related Mortgage Loan documents arising by reason of any failure on the part of the related Mortgagor to maintain with respect to the related Mortgaged Property (i)  specific insurance coverage with respect to, or an all-risk casualty Insurance Policy that does not specifically exclude, terrorist or similar acts, and/or (ii)  insurance coverage with respect to damages or casualties caused by terrorist or similar acts upon terms not materially less favorable than those in place as of the Closing Date, in each case as to which default the Master Servicer and the Special Servicer may forbear taking any enforcement action; provided that the Special Servicer has determined, in its reasonable judgment, based on inquiry consistent with the Servicing Standard (and (i) unless a Control Termination Event is continuing, with the consent of the Directing Holder (other than with respect to an Excluded Loan or (ii) during a Control Termination Event but while no Consultation Termination Event is continuing, after non-binding consultation with the applicable Directing Holder as provided in Section 6.08 (other than with respect to an Excluded Loan)), that either (a) such insurance is not available at commercially reasonable rates and that such hazards are not at the time commonly insured against for properties similar to the related Mortgaged Property and located in or around the region in which such related Mortgaged Property is located, or (b) such insurance is not available at any rate; provided, however, that if the Directing Holder does not respond within twenty (20) days to the Special Servicer’s request for such consent or consultation, as applicable, such consent or consultation shall be deemed waived; provided, further, that upon the Special Servicer’s determination, consistent with the Servicing Standard, that exigent circumstances do not allow the Special Servicer to consult with the Directing Holder, the Special Servicer is not required to do so. “Act”: The Securities Act of 1933, as it may be amended from time to time.

 

Actual/360 Basis”: Interest accrual on the basis of the actual number of days in a month assuming a 360-day year.

 

Actual/360 Mortgage Loans”: The Mortgage Loans, to the extent indicated as such in the Mortgage Loan Schedule.

 

Additional Debt”: With respect to any Mortgage Loan, any debt owed by the Mortgagor to a party other than the lender under such Mortgage Loan that is secured by the Mortgaged Property as of the Closing Date as set forth on Schedule 1, as increased or decreased from time to time pursuant to the terms of the related subordinate or pari passu loan documents (including any Intercreditor Agreement or subordination agreement).

 

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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, attached as Exhibit EE.

 

Additional Exclusions”: Exclusions in addition to those customarily found in the insurance policies for mortgaged properties similar to a given Mortgaged Property on or prior to September 11, 2001.

 

Additional Form 10-D Disclosure”: As defined in Section 11.04(a).

 

Additional Form 10-K Disclosure”: As defined in Section 11.05(a).

 

Additional Servicer”: Each Affiliate of the Master Servicer, the Special Servicer or any Mortgage Loan Seller that services any of the Mortgage Loans and each Person who is not an Affiliate of the Master Servicer, other than the Special Servicer, who services 10% or more of the Mortgage Loans by unpaid principal balance as of any date of determination pursuant to Article XI.

 

Administrative Cost Rate”: As of any date of determination and with respect to each Mortgage Loan, a per annum rate equal to the sum of the Servicing Fee Rate, the Certificate Administrator/Trustee Fee Rate (which fee rate accounts for the Trustee fee), the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC® Intellectual Property Royalty License Fee Rate and, in the case of each Non-Serviced Mortgage Loan, the related Non-Serviced Primary Servicing Fee Rate.

 

Advance”: Any P&I Advance or Servicing Advance.

 

Adverse REMIC Event”: As defined in Section 10.01(f).

 

Affected Party”: As defined in Section 7.01(b).

 

Affected Reporting Party”: As defined in Section 11.13.

 

Affiliate”: With respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

Affirmative Asset Review Vote”: As defined in Section 12.01(a).

 

Agreement”: This Pooling and Servicing Agreement, including any related amendments and supplements.

 

Anticipated Repayment Date”: With respect to each Mortgage Loan that is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date upon which such Mortgage Loan commences accruing interest at such Revised Rate.

 

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Applicable Laws”: As defined in Section 8.15.

 

Applicable Fitch Permitted Investment Rating”: (A) in the case of such investments with maturities of thirty (30) days or less, the short-term debt obligations of which are rated at least “F1” by Fitch or the long-term debt obligations of which are rated at least “A” by Fitch, and (B) in the case of such investments with maturities of more than thirty (30) days, the short-term obligations of which are rated at least “F1+” by Fitch or the long-term obligations of which are rated at least “AA-” by Fitch.

 

Applicable KBRA Permitted Investment Rating”: (A) in the case of such investments with maturities of 90 days or less, the short-term debt obligations of which are rated of at least “K3” or the long-term obligations of which are rated at least “BBB-” and (B) in the case of such investments with maturities greater than 90 days but not more than one year, the short-term debt obligations of which are rated of at least “K1” or the long-term obligations of which are rated at least “A-” (in each case, if then rated by KBRA).

 

Applicable Moody’s Permitted Investment Rating”: in the case of such investments, the short-term debt obligations of which are rated at least “P-1” by Moody’s or the long-term debt obligations of which are rated at least “A2” by Moody’s.

 

Applicable S&P Permitted Investment Rating”: (A) in the case of such investments with maturities of sixty (60) days or less, the short-term obligations of which are rated at least “A-1” by S&P, and (B) in the case of such investments with maturities of more than sixty (60) days, the short-term obligations of which are rated “A-1+” by S&P (or at least “A-1” by S&P, if the long-term obligations of which are rated at least “AA-” by S&P).

 

Applicable State and Local Tax Law”: (a) The tax laws of the State of New York and (b) such other state or local tax laws whose applicability has been brought to the attention of the Trustee and the Certificate Administrator by either (i) an Opinion of Counsel delivered to it, or (ii) written notice from the appropriate taxing authority as to the applicability of such state or local tax laws.

 

Appraisal”: An appraisal prepared by an appraiser who is licensed or certified to prepare appraisals in the state where the Mortgaged Property is located and which satisfies the Interagency Appraisal and Evaluation Guidelines jointly issued by The Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System (FRB), the Federal Deposit Insurance Corporation (FDIC), and the National Credit Union Administration (NCUA) relating to real estate appraisals and evaluations used to support real estate-related financial transactions, as amended from time to time. The Master Servicer or the Special Servicer shall cause any Appraisal ordered by such party to be performed by an Independent MAI designated appraiser.

 

Appraisal Reduction Amount”: For any Distribution Date and for any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or any Serviced Whole Loan as to which any Appraisal Reduction Event has occurred, will be an amount, calculated by the Special Servicer (if no Consultation Termination Event is continuing, in consultation with the Directing Holder (except in the case of an Excluded Loan as to such party), and, during an Operating Advisor Consultation

 

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Event, in consultation with the Operating Advisor) as of the first Determination Date that is at least ten (10) Business Days following the date on which the Special Servicer receives an Appraisal or conducts a valuation described below equal to the excess of (a) the Stated Principal Balance of that Mortgage Loan or the applicable Serviced Whole Loan, as the case may be, over (b) the excess of (i) the sum of (A) 90% of the Appraised Value of the related Mortgaged Property as determined (1) by one or more Appraisals obtained by the Special Servicer with respect to that Mortgage Loan, Crossed Mortgage Loan Group or Serviced Whole Loan, as the case may be, with an outstanding principal balance equal to or in excess of $2,000,000 (the costs of which shall be paid by the Master Servicer as an Advance) or (2) by an internal valuation performed by the Special Servicer with respect to that Mortgage Loan, Crossed Mortgage Loan Group or Serviced Whole Loan, as the case may be, with an outstanding principal balance less than $2,000,000, minus, with respect to any Appraisals, such downward adjustments as the Special Servicer may make (without implying any obligation to do so) based upon its review of the Appraisal and any other information it deems relevant and (B) all escrows, letters of credit and reserves in respect of such Mortgage Loan or Serviced Whole Loan, as applicable, as of the date of calculation over (ii) the sum of, as of the Due Date occurring in the month of the date of determination, (A) to the extent not previously advanced by the Master Servicer or the Trustee, all unpaid interest due on such Mortgage Loan or Serviced Whole Loan, as the case may be, at a per annum rate equal to its Mortgage Rate (and, with respect to any Serviced AB Whole Loan, including any accrued and unpaid interest on the related Subordinate Companion Loan(s)), (B) all P&I Advances on the related Mortgage Loan and all Servicing Advances on the related Mortgage Loan or Serviced Whole Loan, as applicable, not reimbursed from proceeds of such Mortgage Loan or Serviced Whole Loan, as applicable, and interest thereon at the Reimbursement Rate in respect of such Mortgage Loan or Serviced Whole Loan, as applicable, and (C) all currently due and unpaid real estate taxes, assessments, insurance premiums, ground rents, unpaid Special Servicing Fees and all other amounts due and unpaid (including any capitalized interest whether or not then due and payable) with respect to such Mortgage Loan or Serviced Whole Loan, as the case may be (which taxes, premiums, ground rents and other amounts have not been the subject of an Advance by the Master Servicer, the Special Servicer or the Trustee, as applicable); provided, however, that without limiting the Special Servicer’s obligation to use reasonable efforts to obtain such Appraisal or perform such valuation, if the Special Servicer has not obtained an Appraisal or performed such valuation, as applicable, referred to above within sixty (60) days of the Appraisal Reduction Event (or with respect to the Appraisal Reduction Events set forth in clauses (i) and (vi) of the definition of Appraisal Reduction Event, within one hundred twenty (120) days after the initial delinquency for the related Appraisal Reduction Event), the Appraisal Reduction Amount shall be deemed to be an amount equal to 25% of the current Stated Principal Balance of the related Mortgage Loan or Serviced Whole Loan, as applicable, until such time as such Appraisal or valuation referred to above is received by the Special Servicer and the Appraisal Reduction Amount shall be calculated as of the first Determination Date that is at least ten (10) Business Days thereafter. Promptly upon the occurrence of an Appraisal Reduction Event (other than with respect to a Non-Serviced Whole Loan), the Special Servicer shall use reasonable efforts to obtain an Appraisal (the cost of which shall be paid by the Master Servicer as a Servicing Advance); provided, further, however, that with respect to an Appraisal Reduction Event as set forth in clause (i) of the definition of Appraisal Reduction Event, the Special Servicer shall use reasonable efforts to obtain such Appraisal within the one hundred twenty (120) day period set forth in such clause (i), and with respect to an Appraisal Reduction Event as set forth in clause (vi) of the definition of Appraisal Reduction Event, the

 

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Special Servicer shall use reasonable efforts to obtain such Appraisal within the one hundred twenty (120) day period set forth in such clause (vi); provided, further, however, that in no event shall the Special Servicer be required to order any such Appraisal within any time frame specified in this sentence. The Appraisal obtained by the Special Servicer, as described above, shall be promptly delivered in electronic format by the Special Servicer to the Master Servicer, the Directing Holder (but only if no Consultation Termination Event is continuing and other than in the case of an Excluded Loan), the Operating Advisor, the Certificate Administrator and the Trustee. In connection with any Appraisal Reduction Amount, the Master Servicer shall provide the Special Servicer with the information as set forth in Section 4.05(c) within four (4) Business Days of its receipt of any such request. The Master Servicer will not calculate Appraisal Reduction Amounts.

 

With respect to any Appraisal Reduction Amount calculated for purposes of determining the existence and identity of the Controlling Class pursuant to Section 4.05(a), the Appraised Value for the related Mortgaged Property determined in connection with clause (b)(i)(A)(1) or clause (b)(i)(A)(2) of the first paragraph of this definition shall be determined on an “as-is” basis.

 

Notwithstanding anything herein to the contrary, the aggregate Appraisal Reduction Amount related to a Mortgage Loan or the related REO Property will be reduced to zero as of the date on which such Mortgage Loan is paid in full, liquidated, repurchased or otherwise removed from the Trust or as otherwise set forth in Section 4.05(d).

 

Any Appraisal Reduction Amount in respect of a Non-Serviced Whole Loan will be calculated by the applicable party under and in accordance with and pursuant to the terms of the applicable Non-Serviced PSA.

 

Appraisal Reduction Event”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, the earliest of (i) one hundred twenty (120) days after an uncured delinquency (without regard to the application of any Grace Period), other than any uncured delinquency in respect of a Balloon Payment, occurs in respect of such Mortgage Loan or a related Companion Loan, (ii) the date on which a reduction in the amount of Periodic Payments on such Mortgage Loan or a related Companion Loan, as applicable, or a change in any other material economic term of such Mortgage Loan or a related Companion Loan, as applicable, (other than an extension of the Maturity Date), becomes effective as a result of a modification of such Mortgage Loan or a related Companion Loan, as applicable, by the Special Servicer, (iii) thirty (30) days after the date on which a receiver has been appointed for the Mortgaged Property, (iv) thirty (30) days after the date on which a Mortgagor or the tenant at a single tenant property declares bankruptcy (and the bankruptcy petition is not otherwise dismissed within such time), (v) sixty (60) days after the date on which an involuntary petition of bankruptcy is filed with respect to a Mortgagor if not dismissed within such time, (vi) solely in the case of a delinquent Balloon Payment, (A) the date occurring ninety (90) days after the date on which such Balloon Payment was due (except as described in clause (B) below) or (B) in the case of a Mortgage Loan or Serviced Whole Loan delinquent with respect to the Balloon Payment as to which the related Mortgagor has delivered to the Master Servicer or the Special Servicer (and in either such case the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a copy thereof to the Master Servicer (in the case of the Special Servicer) or the Special Servicer

 

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(in the case of the Master Servicer)) on or before the date on which that Balloon Payment was due a refinancing commitment or otherwise binding application or other similar binding document for refinancing from an acceptable lender or signed purchase agreement (in each case reasonably acceptable to the Special Servicer) one hundred twenty (120) days beyond the date on which that Balloon Payment was due (or for such shorter period beyond the date on which that Balloon Payment was due during which the refinancing or purchase is scheduled to occur), and (vii) immediately after such Mortgage Loan or a related Companion Loan, as applicable, becomes an REO Loan; provided that the thirty (30) day period referenced in clause (iii) and clause (iv) shall not apply if the related Mortgage Loan is a Specially Serviced Loan; provided, further, however, that, if an event described in this definition occurs at any time when the aggregate Certificate Balances of all Classes of Subordinate Certificates have been reduced to zero, such event shall be deemed not to constitute an Appraisal Reduction Event. The Special Servicer shall notify the Master Servicer, the applicable Directing Holder and the Operating Advisor, or the Master Servicer shall notify the Special Servicer and the Operating Advisor, as applicable, promptly upon such Person having notice or knowledge of the occurrence of any of the foregoing events. The obligation to obtain an Appraisal following the occurrence of an Appraisal Reduction Event shall be subject to the provisions of Section 4.05.

 

Notwithstanding anything to the contrary in the definition of Appraisal Reduction Event, no event, circumstance or action that has occurred or will occur with respect to a COVID Modified Loan (other than an event described in clauses (iii), (iv), (v) or (vii) of the definition of Appraisal Reduction Event) or the entry into of a COVID Modification Agreement shall constitute an Appraisal Reduction Event, but only if, and for so long as, the related Mortgagor and each related obligor is in compliance with the terms of the related COVID Modification Agreement.

 

Appraisal Review Period”: As defined in Section 4.05(b)(ii).

 

Appraised-Out Class”: As defined in Section 4.05(b).

 

Appraised Value”: (i) With respect to any Mortgaged Property (other than a Non-Serviced Mortgaged Property), the appraised value thereof as determined by the most recent Appraisal of the Mortgaged Property securing the related Mortgage Loan, Serviced Whole Loan or Serviced AB Whole Loan and (ii) with respect to a Non-Serviced Mortgaged Property, the appraised value allocable thereto, as determined pursuant to the applicable Non-Serviced PSA.

 

Arbitration Services Provider”: As defined in Section 2.03(n)(i).

 

ARD Loan”: Any Mortgage Loan that is identified on the Mortgage Loan Schedule as having an Anticipated Repayment Date and Revised Rate.

 

Asset Representations Reviewer”: Park Bridge Lender Services LLC, a New York limited liability company, and its successors-in-interest.

 

Asset Representations Reviewer Asset Review Fee”: As defined in Section 12.02(b).

 

Asset Representations Reviewer Fee”: As defined in Section 12.02(a).

 

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Asset Representations Reviewer Fee Rate”: As defined in Section 12.02(a).

 

Asset Representations Reviewer Termination Event”: As defined in Section 12.05(a).

 

Asset Review”: A review of the compliance of each Delinquent Loan with certain representations and warranties of the applicable Mortgage Loan Seller, in accordance with the Asset Review Standard and the procedures set forth on Exhibit QQ.

 

Asset Review Notice”: As defined in Section 12.01(a).

 

Asset Review Quorum”: In connection with any solicitation of votes to authorize an Asset Review as described in Section 12.01(a), the Certificateholders evidencing at least 5% of the aggregate Voting Rights represented by all Certificates.

 

Asset Review Report”: A report setting forth the results of an Asset Review substantially in the form of Exhibit OO.

 

Asset Review Report Summary”: As defined in Section 12.01(b)(viii), a summary report setting forth the conclusions of an Asset Review Report substantially in the form of Exhibit PP.

 

Asset Review Standard”: The performance of the Asset Representations Reviewer of its duties under this Agreement in good faith subject to the express terms of this Agreement. All determinations or assumptions made by the Asset Representations Reviewer in connection with an Asset Review shall be made in the Asset Representations Reviewer’s good faith discretion and judgment based on the facts and circumstances known to it at the time of such determination or assumption.

 

Asset Review Trigger”: Any time that either (1) Mortgage Loans having an aggregate outstanding principal balance of 25.0% or more of the aggregate outstanding principal balance of all of the Mortgage Loans (including any REO Loans (or a portion of any REO Loan in the case of a Whole Loan)) held by the Trust as of the end of the applicable Collection Period are Delinquent Loans or (2) at least 15 Mortgage Loans are Delinquent Loans as of the end of the applicable Collection Period and the outstanding principal balance of such Delinquent Loans in the aggregate constitutes at least 20.0% of the aggregate outstanding principal balance of all of the Mortgage Loans (including any REO Loans (or a portion of any REO Loan in the case of a Whole Loan)) held by the Trust as of the end of the applicable Collection Period.

 

Asset Review Vote Election”: As defined in Section 12.01(a).

 

Asset Status Report”: As defined in Section 3.19(d).

 

Assignment” and “Assignments”: Each as defined in Section 2.01(c).

 

Assignment of Leases”: With respect to any Mortgaged Property, any assignment of leases, rents and profits or similar instrument executed by the Mortgagor, assigning to the mortgagee all of the income, rents and profits derived from the ownership, operation, leasing or

 

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disposition of all or a portion of such Mortgaged Property, in the form which was duly executed, acknowledged and delivered, as amended, modified, renewed or extended through the date hereof and from time to time hereafter.

 

Assignment of Mortgage”: An assignment of Mortgage without recourse, notice of transfer or equivalent instrument, in recordable form, which is sufficient under the laws of the jurisdiction in which the related Mortgaged Property is located to reflect of record the sale of the Mortgage, which assignment, notice of transfer or equivalent instrument may be in the form of one or more blanket assignments covering Mortgages encumbering Mortgaged Properties located in the same jurisdiction, if permitted by law and acceptable for recording.

 

Assumed Scheduled Payment”: For any Collection Period and with respect to any Mortgage Loan (including any Non-Serviced Mortgage Loan) that is delinquent in respect of its Balloon Payment or any REO Loan (for purposes of any P&I Advances, only taking into account the portion allocable to the related predecessor Mortgage Loan), an amount equal to the sum of (a) the principal portion of the Periodic Payment that would have been due on such Mortgage Loan or REO Loan (for purposes of any P&I Advances, only taking into account the portion allocable to the related predecessor Mortgage Loan) on the related Due Date based on the constant payment required by the related Mortgage Note or the original amortization schedule of such Mortgage Loan (as calculated with interest at the related Mortgage Rate), if applicable, assuming such Balloon Payment has not become due, after giving effect to any reduction in the principal balance thereof occurring in connection with a modification of such Mortgage Loan in connection with a default or bankruptcy (or similar proceeding), and/or the related Mortgaged Property has not become an REO Property, and (b) interest on the Stated Principal Balance of such Mortgage Loan or REO Loan (for purposes of any P&I Advances, only taking into account the portion allocable to the related predecessor Mortgage Loan) at the applicable Mortgage Rate (net of any Excess Interest and net of interest at the Servicing Fee Rate and the related Non-Serviced Primary Servicing Fee Rate, if applicable).

 

Authenticating Agent”: The Certificate Administrator or any agent of the Certificate Administrator appointed to act as Authenticating Agent pursuant to Section 5.02(a).

 

Available Funds”: With respect to any Distribution Date, an amount equal to the sum of (without duplication) the following amounts in respect of the Mortgage Loans:

 

(a)                the aggregate amount of all cash received on the Mortgage Loans (in the case of a Non-Serviced Mortgage Loan, only to the extent received by the Trust pursuant to the related Non-Serviced PSA and/or the related Non-Serviced Intercreditor Agreement) (including the portion of Loss of Value Payments deposited into the Collection Account pursuant to Section 3.05(g)) and any REO Property on deposit in the Collection Account (in each case, exclusive of any amount on deposit in or credited to any portion of the Collection Account that is held for the benefit of the Companion Holders) as of the related P&I Advance Date, exclusive of (without duplication):

 

(i)                all Periodic Payments paid by the Mortgagors of a Mortgage Loan that are due on a Due Date following the end of the related Collection Period, excluding interest relating to payments prior to, but due after, the Cut-off Date;

 

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(ii)                all unscheduled Principal Prepayments (together with any related payments of interest allocable to the period following the related Due Date for the related Mortgage Loan), Liquidation Proceeds or Insurance and Condemnation Proceeds and other unscheduled recoveries, in each case, received subsequent to the related Determination Date (or, with respect to voluntary Principal Prepayments for each Mortgage Loan with a Due Date occurring after the related Determination Date, subsequent to the related Due Date and, in the case of a Non-Serviced Mortgage Loan, other than the monthly remittance thereon) allocable to the Mortgage Loans;

 

(iii)              (A) all amounts payable or reimbursable to any Person from the Collection Account pursuant to clauses (ii) through (xix), inclusive, and (xxii) of Section 3.05(a); (B) all amounts payable or reimbursable to any Person from the Lower-Tier REMIC Distribution Account pursuant to clauses (ii) through (vii), inclusive, of Section 3.05(b); and (C) any Net Investment Earnings contained therein;

 

(iv)              with respect to the Actual/360 Mortgage Loans and any Distribution Date relating to each Interest Accrual Period occurring in (1) each February or (2) any January in a year that is not a leap year (in each case, unless the related Distribution Date is the final Distribution Date), an amount equal to one (1) day of interest on the Stated Principal Balance of such Mortgage Loan immediately following the Distribution Date in the month preceding the month in which the subject Distribution Date occurs at the related Mortgage Rate to the extent such amounts are Withheld Amounts;

 

(v)               all Excess Interest allocable to the Mortgage Loans (which is separately distributed to the Class Z Certificates, as described in Section 4.01(j));

 

(vi)              all Yield Maintenance Charges allocable to the Mortgage Loans;

 

(vii)             all amounts deposited in the Collection Account in error; and

 

(viii)            any Penalty Charges allocable to the Mortgage Loans;

 

(b)               if and to the extent not already included in clause (a) hereof, the aggregate amount transferred from the REO Account allocable to the Mortgage Loans to the Collection Account for such Distribution Date pursuant to Section 3.14(c);

 

(c)                the aggregate amount of any (i) Compensating Interest Payments made by the Master Servicer with respect to the Mortgage Loans with respect to such Distribution Date pursuant to Section 3.17(a) and (ii) P&I Advances made by the Master Servicer or the Trustee, as applicable, with respect to the Mortgage Loans and the Distribution Date (net of the related Certificate Administrator/Trustee Fee, Operating Advisor Fee, Asset Representations Reviewer Fee and CREFC® Intellectual Property Royalty License Fee actually payable with respect to the Mortgage Loans for which such P&I Advances are made if not already deducted under clause (a)(iii)) pursuant to Section 4.03 or Section 7.05;

 

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(d)               with respect to each Actual/360 Mortgage Loan and any Distribution Date occurring in each March (or February, if the related Distribution Date is the final Distribution Date), the Withheld Amounts remitted to the Lower-Tier REMIC Distribution Account pursuant to Section 3.21(b); and

 

(e)                the Gain-on-Sale Remittance Amount for such Distribution Date.

 

Notwithstanding the investment of funds held in the Collection Account pursuant to Section 3.06, for purposes of calculating the Available Funds, the amounts so invested shall be deemed to remain on deposit in such account.

 

Balloon Mortgage Loan”: Any Mortgage Loan or Companion Loan that by its original terms or by virtue of any modification entered into as of the Closing Date provides for an amortization schedule for such Mortgage Loan or Companion Loan extending beyond its Maturity Date.

 

Balloon Payment”: With respect to any Balloon Mortgage Loan, as of any date of determination, the Periodic Payment payable on the Maturity Date of such Balloon Mortgage Loan.

 

Bankruptcy Code”: The federal Bankruptcy Code, as amended from time to time (Title 11 of the United States Code).

 

Base Interest Fraction”: As defined in Section 4.01(e).

 

Book-Entry Certificate”: Any Certificate registered in the name of the Depository or its nominee.

 

Borrower Party”: A borrower, a Mortgagor, a manager of a Mortgaged Property, an Accelerated Mezzanine Loan Lender, or any Borrower Party Affiliate.

 

Borrower Party Affiliate”: With respect to a borrower, a Mortgagor, a manager of a Mortgaged Property or an Accelerated Mezzanine Loan Lender, (a) any other Person controlling or controlled by or under common control with such borrower, Mortgagor, manager or Accelerated Mezzanine Loan Lender, as applicable, or (b) any other Person owning, directly or indirectly, 25% or more of the beneficial interests in such borrower, Mortgagor, manager or Accelerated Mezzanine Loan Lender, as applicable. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

Breach”: With respect to any Mortgage Loan, a breach of any representation or warranty with respect to such Mortgage Loan set forth in or made pursuant to Section 6(c) of the related Mortgage Loan Purchase Agreement.

 

Business Day”: Any day other than a Saturday, a Sunday or a day on which banking institutions in North Carolina, Florida, New York, Kansas, Pennsylvania, California or

 

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any of the jurisdictions in which the respective primary servicing offices of the Master Servicer or Special Servicer or the Corporate Trust Office of the Trustee or the Certificate Administrator, or the principal place of business or principal commercial mortgage loan servicing office of the Master Servicer or the Special Servicer is located, or the New York Stock Exchange or the Federal Reserve System of the United States of America are authorized or obligated by law or executive order to remain closed.

 

Centene Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of November 18, 2021, by and between the holders of the respective promissory notes evidencing the Centene Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

CERCLA”: The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.

 

Certificate”: Any one of the Depositor’s Commercial Mortgage Pass-Through Certificates, Series 2021-PF1, as executed and delivered by the Certificate Registrar and authenticated and delivered hereunder by the Authenticating Agent.

 

Certificate Administrator”: Wells Fargo Bank, National Association in its capacity as certificate administrator, or any successor certificate administrator appointed hereunder. Wells Fargo Bank, National Association shall perform the certificate administrator role through its Corporate Trust Services division (including any agents or affiliates, as applicable, utilized hereby).

 

Certificate Administrator/Trustee Fee”: The fee to be paid to the Certificate Administrator as compensation for the Certificate Administrator’s activities under this Agreement; provided that the Certificate Administrator/Trustee Fee includes the Trustee fee. The Certificate Administrator/Trustee Fee shall be equal to the product of the Certificate Administrator/Trustee Fee Rate and the Stated Principal Balance of each Mortgage Loan (calculated in the same manner as interest is calculated on the related Mortgage Loan) and REO Mortgage Loan as of the preceding Distribution Date.

 

Certificate Administrator/Trustee Fee Rate”: A rate equal to 0.00811% per annum.

 

Certificate Administrator’s Website”: The Certificate Administrator’s Internet website, which shall initially be located at www.ctslink.com.

 

Certificate Balance”: With respect to any Class of Certificates (other than any Class of Class X Certificates, the Class R Certificates and the Class Z Certificates), (a) on or prior to the first Distribution Date, an amount equal to the aggregate Original Certificate Balance of such Class, as specified in the Preliminary Statement to this Agreement and (b) as of any date of determination after the first Distribution Date, the Certificate Balance of such Class on the Distribution Date immediately prior to such date of determination pursuant to Section 1.02(iii) less any distributions allocable to principal and any allocations of Realized Losses made thereon on such prior Distribution Date.

 

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Certificate Factor”: With respect to any Class of Certificates (other than the Class Z and Class R Certificates), as of any date of determination, a fraction, expressed as a decimal carried to at least eight (8) places, the numerator of which is the then-current related Certificate Balance or Notional Amount, and the denominator of which is the related Original Certificate Balance or Original Notional Amount.

 

Certificate Owner”: With respect to a Book-Entry Certificate, the Person who is the beneficial owner of such Certificate as reflected on the books of the Depository or on the books of a Depository Participant or on the books of an indirect participating brokerage firm for which a Depository Participant acts as agent.

 

Certificate Register” and “Certificate Registrar”: The register maintained and registrar appointed pursuant to Section 5.03(a).

 

Certificateholder” or “Holder”: The Person in whose name a Certificate is registered in the Certificate Register or any beneficial owner thereof; provided, however, that (1) solely for the purposes of giving any consent, approval, waiver or taking any action pursuant to this Agreement, any Certificate registered in the name of or beneficially owned by the Master Servicer, the Special Servicer (including, for the avoidance of doubt, any Excluded Special Servicer), the Trustee, the Certificate Administrator, the Depositor, the Operating Advisor, a Borrower Party or any Affiliate of any of such Persons shall be deemed not to be outstanding and (2) solely for the purposes of exercising any rights of a Certificateholder described under Section 2.03(k), any Certificates beneficially owned by the related Mortgage Loan Seller shall be deemed not to be outstanding, and, in the case of either (1) or (2), the applicable Voting Rights to which it is entitled shall not be taken into account in determining whether the requisite percentage of Voting Rights necessary to effect any such consent, take any such action or exercise any such rights has been obtained; provided, however, that notwithstanding the foregoing, for purposes of exercising any rights it may have solely as a member of the Controlling Class, any Controlling Class Certificate owned by an Excluded Controlling Class Holder shall be deemed not to be outstanding as to such Holder solely with respect to any related Excluded Controlling Class Loan; and provided, further, that for purposes of obtaining the consent of Certificateholders to an amendment of this Agreement, any Certificate beneficially owned by the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Operating Advisor, the Certificate Administrator or any of their Affiliates shall be deemed to be outstanding; provided that if such amendment relates to the termination, increase in compensation or material reduction of obligations of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Operating Advisor or the Certificate Administrator or any of their Affiliates, then such Certificate so owned shall be deemed not to be outstanding; and provided, further, that such restrictions shall not apply to (i) the exercise of the rights of the Special Servicer, the Master Servicer or any of their Affiliates as a member of the Controlling Class (but not with respect to any Excluded Controlling Class Loan with respect to which such party is an Excluded Controlling Class Holder) or (ii) solely for purposes of accessing information, any Affiliate of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Operating Advisor or the Certificate Administrator that has provided an Investor Certification in which it has certified as to the existence of certain policies and procedures restricting the flow of information between it and the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Operating Advisor or the Certificate Administrator, as applicable. The Trustee and the Certificate Administrator shall each be entitled to request and rely upon a certificate of the Master

 

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Servicer, the Special Servicer or the Depositor in determining whether a Certificate is registered in the name of an Affiliate of such Person. All references herein to “Holders” or “Certificateholders” shall reflect the rights of Certificate Owners as they may indirectly exercise such rights through the Depository and the Depository Participants, except as otherwise specified herein; provided, however, that the parties hereto shall be required to recognize as a “Holder” or “Certificateholder” only the Person in whose name a Certificate is registered in the Certificate Register. The Trustee shall be the Holder of the Lower-Tier Regular Interests for the benefit of the Certificateholders.

 

Certificateholder Quorum”: In connection with any solicitation of votes in connection with the replacement of the Special Servicer or the Asset Representations Reviewer pursuant to Section 7.01(d) and Section 12.05 (other than as a result of the replacement of the Special Servicer at the recommendation of the Operating Advisor), the Holders of Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the application of Realized Losses and, with respect to the termination of the Special Servicer, the application of any Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balance of the Certificates) of all Principal Balance Certificates on an aggregate basis.

 

Certificateholder Repurchase Request”: As defined in Section 2.03(k).

 

Certification Parties”: As defined in Section 11.06.

 

Certification Party”: Any one of the Certification Parties.

 

Certifying Person”: As defined in Section 11.06.

 

Certifying Servicer”: As defined in Section 11.09.

 

Class”: With respect to any Certificates or Lower-Tier Regular Interests, all of the Certificates bearing the same alphabetic (and, if applicable, alphanumeric) Class designation and each designated Lower-Tier Regular Interest.

 

Class A Certificate”: Any Class A-1, Class A-3, Class A-4, Class A-5, Class A-SB and Class A-S Certificate.

 

Class A-1 Certificate”: A Certificate designated as “Class A-1” on its face, in the form of Exhibit A-1, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class A-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to a fixed rate of 1.12200%.

 

Class A-3 Certificate”: A Certificate designated as “Class A-3” on its face, in the form of Exhibit A-2, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class A-3 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to a fixed rate of 1.99500%.

 

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Class A-4 Certificate”: A Certificate designated as “Class A-4” on its face, in the form of Exhibit A-3, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class A-4 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to a fixed rate of 2.25300%.

 

Class A-5 Certificate”: A Certificate designated as “Class A-5” on its face, in the form of Exhibit A-4, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class A-5 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to a fixed rate of 2.52200%.

 

Class A-S Certificate”: A Certificate designated as “Class A-S” on its face, in the form of Exhibit A-9, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class A-S Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (a) 2.77800% and (b) the WAC Rate for such Distribution Date.

 

Class A-SB Certificate”: A Certificate designated as “Class A-SB” on its face, in the form of Exhibit A-5, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class A-SB Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to a fixed rate of 2.37200%.

 

Class A-SB Planned Principal Balance”: With respect to any Distribution Date, the planned principal amount for such Distribution Date specified in Schedule 2 relating to the Class A-SB Certificates.

 

Class B Certificate”: A Certificate designated as “Class B” on its face, in the form of Exhibit A-10, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class B Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to a fixed rate of 2.71700%.

 

Class C Certificate”: A Certificate designated as “Class C” on its face, in the form of Exhibit A-11, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class C Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (a) 3.21300% and (b) the WAC Rate for such Distribution Date.

 

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Class D Certificate”: A Certificate designated as “Class D” on its face, in the form of Exhibit A-12, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class D Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to a fixed rate of 2.25000%.

 

Class E Certificate”: A Certificate designated as “Class E” on its face, in the form of Exhibit A-13, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class E Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to a fixed rate of 2.25000%.

 

Class F-RR Certificate”: A Certificate designated as “Class F-RR” on its face, in the form of Exhibit A-14, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class F-RR Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the WAC Rate for such Distribution Date.

 

Class G-RR Certificate”: A Certificate designated as “Class G-RR” on its face, in the form of Exhibit A-15, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class G-RR Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the WAC Rate for such Distribution Date.

 

Class J-RR Certificate”: A Certificate designated as “Class J-RR” on its face, in the form of Exhibit A-16, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class J-RR Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the WAC Rate for such Distribution Date.

 

Class LA-1 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement.

 

Class LA-3 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement.

 

Class LA-4 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement.

 

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Class LA-5 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement.

 

Class LA-S Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement.

 

Class LA-SB Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement.

 

Class LB Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement.

 

Class LC Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement.

 

Class LD Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement.

 

Class LE Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement.

 

Class LF-RR Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement.

 

Class LG-RR Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement.

 

Class LJ-RR Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement.

 

Class LNR-RR Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement.

 

Class LR Interest”: The uncertificated residual interest in the Lower-Tier REMIC, represented by the Class R Certificates.

 

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Class NR-RR Certificate”: A Certificate designated as “Class NR-RR” on its face, in the form of Exhibit A-16, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class NR-RR Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the WAC Rate for such Distribution Date.

 

Class R Certificate”: A Certificate designated as “Class R” on its face in the form of Exhibit A-17, and evidencing the sole class of “residual interest” in each Trust REMIC for purposes of the REMIC Provisions.

 

Class UR Interest”: The uncertificated residual interest in the Upper-Tier REMIC, represented by the Class R Certificates.

 

Class X Certificates”: The Class X-A, Class X-B and/or Class X-D Certificates, as the context may require.

 

Class X-A Certificate”: A Certificate designated as “Class X-A” on its face, in the form of Exhibit A-6, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class X-A Notional Amount”: As of any date of determination, the aggregate of the Certificate Balances of the Class A-1, Class A-3, Class A-4, Class A-5,  A-SB and Class A-S Certificates.

 

Class X-A Pass-Through Rate”: The Pass-Through Rate for Class X-A Certificates for any Distribution Date will equal the excess, if any, of (a) the WAC Rate for such Distribution Date, over (b) the weighted average of the Pass-Through Rates on the Class A-1, Class A-3, Class A-4, Class A-5, Class A-SB and Class A-S Certificates for such Distribution Date, weighted on the basis of their respective Certificate Balances immediately prior to such Distribution Date. The Pass-Through Rate applicable to the Class X-A Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement.

 

Class X-B Certificate”: A Certificate designated as “Class X-B” on its face, in the form of Exhibit A-7, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class X-B Notional Amount”: As of any date of determination, the aggregate Certificate Balances of the Class B and Class C Certificates.

 

Class X-B Pass-Through Rate”: The Pass-Through Rate for Class X-B Certificates for any Distribution Date will equal the excess, if any, of (a) the WAC Rate for such Distribution Date, over (b) the weighted average of the Pass-Through Rates on the Class B and Class C Certificates for such Distribution Date, weighted on the basis of their respective Certificate Balances immediately prior to such Distribution Date. The Pass-Through Rate applicable to the Class X-B Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement.

 

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Class X-D Certificate”: A Certificate designated as “Class X-D” on its face, in the form of Exhibit A-8, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class X-D Notional Amount”: As of any date of determination, the aggregate Certificate Balances of the Class D and Class E Certificates.

 

Class X-D Pass-Through Rate”: The Pass-Through Rate for Class X-D Certificates for any Distribution Date will equal the excess, if any, of (a) the WAC Rate for such Distribution Date, over (b) the weighted average of the Pass-Through Rates on the Class D and Class E Certificates for such Distribution Date, weighted on the basis of their respective Certificate Balances immediately prior to such Distribution Date. The Pass-Through Rate applicable to the Class X-D Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement.

 

Class Z Certificate”: A Certificate designated as “Class Z” on the face thereof, in the form of Exhibit A-18, representing undivided beneficial interests in the Class Z Specific Grantor Trust Assets.

 

Class Z Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of any Excess Interest, the Excess Interest Distribution Account and the proceeds thereof.

 

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

 

Clearstream”: Clearstream Banking, Luxembourg or any successor thereto.

 

Closing Date”: November 18, 2021.

 

CMBS”: Commercial mortgage-backed securities.

 

Code”: The Internal Revenue Code of 1986, as amended from time to time, and applicable final or temporary regulations of the U.S. Department of the Treasury issued pursuant thereto.

 

Collateral Deficiency Amount”: With respect to any AB Modified Loan as of any date of determination, shall be an amount equal to the excess of (i) the Stated Principal Balance of such AB Modified Loan (taking into account the related junior note(s) and any pari passu notes included therein), over (ii) the sum of (in the case of a Whole Loan, solely to the extent allocable to the subject Mortgage Loan (x) the most recent Appraised Value for the related Mortgaged Property or Mortgaged Properties, plus (y) solely to the extent not reflected or taken into account in such Appraised Value (or in the calculation of any related Appraisal Reduction Amount) and to the extent on deposit with, or otherwise under the control of, the lender as of the date of such determination, any capital or additional collateral contributed by the related Mortgagor at the time the Mortgage Loan became (and as part of the modification related to) such AB Modified Loan for the benefit of the related Mortgaged Property or Mortgaged Properties (provided that in the case of a Non-Serviced Mortgage Loan, the amounts set forth in this clause (y) will be taken into account solely to the extent relevant information is received by the Master Servicer), plus (z) any

 

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other escrows or reserves (in addition to any amounts set forth in the immediately preceding clause (y) and solely to the extent not reflected or taken into account in the calculation of any related Appraisal Reduction Amount) held by the lender in respect of such AB Modified Loan as of the date of such determination, which such excess, for the avoidance of doubt, will be determined separately from and exclude any related Appraisal Reduction Amounts. The Certificate Administrator and the Special Servicer may conclusively rely on the Master Servicer’s calculation or determination of any Collateral Deficiency Amount with respect to any Non-Serviced Mortgage Loan. The Certificate Administrator and the Master Servicer may conclusively rely on the Special Servicer’s calculation or determination of any Collateral Deficiency Amount with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan). In the case of a Serviced Whole Loan, any Collateral Deficiency Amount shall be allocated among the related Mortgage Loan, Serviced Pari Passu Companion Loan(s) and Subordinate Companion Loan(s) in the same manner as Appraisal Reduction Amounts.

 

With respect to any Collateral Deficiency Amount calculated for purposes of determining the existence and identity of the Controlling Class pursuant to Section 4.05(a), the Appraised Value for the related Mortgaged Property determined in connection with this definition shall be determined on an “as-is” basis.

 

Collection Account”: A segregated custodial account or accounts created and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of the Trustee for the benefit of the Certificateholders, which shall be titled “Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer on behalf of Wells Fargo Bank, National Association, as Trustee, for the benefit of the registered holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1”. Any such account or accounts shall be an Eligible Account. Subject to the related Intercreditor Agreement and taking into account that each Companion Loan is subordinate or pari passu, as applicable, to the related Serviced Mortgage Loan to the extent set forth in the related Intercreditor Agreement, the subaccount described in the second paragraph of Section 3.04(b) that is part of the Collection Account shall be for the benefit of the related Companion Holder, to the extent funds on deposit in such subaccount are attributed to such Companion Loan and shall not be an asset of the Trust, any Trust REMIC or the Grantor Trust.

 

Collection Period”: With respect to any Distribution Date and any Mortgage Loan or Companion Loan, the period commencing on the day immediately succeeding the Due Date for such Mortgage Loan or Companion Loan occurring in the month preceding the month in which that Distribution Date occurs or the date that would have been the Due Date if such Mortgage Loan or Companion Loan had a Due Date in such preceding month and ending on and including the Due Date for such Mortgage Loan or Companion Loan occurring in the month in which that Distribution Date occurs. Notwithstanding the foregoing, if the last day of a Collection Period (or applicable Grace Period) is not a Business Day, any Periodic Payments received with respect to the Mortgage Loans or any related Companion Loan relating to such Collection Period (or applicable Grace Period) on the Business Day immediately following such day shall be deemed to have been received during such Collection Period and not during any other Collection Period.

 

Commission”: The Securities and Exchange Commission.

 

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Companion Distribution Account”: With respect to any Serviced Companion Loan, the separate account created and maintained by the Companion Paying Agent pursuant to Section 3.04(b) and held on behalf of the Companion Holders, which shall be titled “Midland Loan Services, a Division of PNC Bank, National Association [or name of successor master servicer], as Companion Paying Agent, for the benefit of the Companion Holders of the Companion Loans, relating to the 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1, Companion Distribution Account”. The Companion Distribution Account shall not be an asset of the Trust, any Trust REMIC or the Grantor Trust, but instead shall be held by the Companion Paying Agent on behalf of the Companion Holders. Any such account shall be an Eligible Account. Notwithstanding the foregoing, if the Master Servicer and the Companion Paying Agent are the same entity, the Companion Distribution Account may be the subaccount referenced in the second paragraph of Section 3.04(b).

 

Companion Holders”: Each of the holders of record of any Companion Loan.

 

Companion Loan(s)”: As defined in the Preliminary Statement.

 

Companion Loan Rating Agency”: Any NRSRO rating any class of Serviced Companion Loan Securities.

 

Companion Loan Rating Agency Confirmations”: A confirmation from each applicable rating agency that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25).

 

Companion Paying Agent”: With respect to the Serviced Companion Loans, if any, the Master Servicer in its role as Companion Paying Agent appointed pursuant to Section 3.27.

 

Companion Register”: As defined in Section 3.28.

 

Compensating Interest Payments”: An aggregate amount as of any Distribution Date equal to the lesser of (i) the aggregate amount of Prepayment Interest Shortfalls incurred in connection with voluntary principal prepayments received in respect of the Mortgage Loans (other than the Non-Serviced Mortgage Loans) and any related Serviced Pari Passu Companion Loan (in each case other than a Specially Serviced Loan or any Mortgage Loan (or any related Serviced Pari Passu Companion Loan) on which the Special Servicer allowed a prepayment on a date other than the applicable Due Date) for the related Distribution Date and (ii) the aggregate of (A) that portion of the Master Servicer’s Servicing Fees for such Distribution Date that is, in the case of each Mortgage Loan (other than a Non-Serviced Mortgage Loan), any related Serviced Pari Passu Companion Loan and REO Loan for which Servicing Fees are being paid for such Collection Period, calculated at a rate of 0.00125% per annum, and (B) all Prepayment Interest Excesses received by the Master Servicer during such Collection Period with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) (and, so long as a Serviced Whole Loan is serviced hereunder, the related Serviced Pari Passu Companion Loan) subject to such prepayment. In no

 

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event will the rights of the Certificateholders to the offset of the aggregate Prepayment Interest Shortfalls be cumulative. However, if a Prepayment Interest Shortfall occurs with respect to a Mortgage Loan (other than a Non-Serviced Mortgage Loan) as a result of the Master Servicer’s allowing the related Mortgagor to deviate (a “Prohibited Prepayment”) from the terms of the related Mortgage Loan documents regarding Principal Prepayments (other than (V) a Non-Serviced Mortgage Loan, (W) subsequent to a default under the related Mortgage Loan documents or if the Mortgage Loan or Serviced Whole Loan is a Specially Serviced Loan, (X) pursuant to applicable law or a court order or otherwise in such circumstances where the Master Servicer is required to accept such Principal Prepayment in accordance with the Servicing Standard, (Y) (i) at the request or with the consent of the Special Servicer or, (ii) for so long as no Control Termination Event is continuing, and, other than with respect to an Excluded Loan, at the request or with the consent of the Directing Holder, or (Z) in connection with the payment of any Insurance and Condemnation Proceeds), then for purposes of calculating the Compensating Interest Payment for the related Distribution Date, the Master Servicer shall pay, without regard to clause (ii) above, the aggregate amount of Prepayment Interest Shortfalls with respect to such Mortgage Loan, otherwise described in clause (i) above in connection with such Prohibited Prepayments.

 

For the avoidance of doubt, Compensating Interest Payments with respect to each Serviced Whole Loan shall be allocated among the related Mortgage Loan and the related Serviced Companion Loan(s), pro rata, in accordance with their respective principal amounts, and the Master Servicer shall pay the portion of such Compensating Interest Payments allocable to the related Serviced Pari Passu Companion Loan to the Non-Serviced Master Servicer.

 

Consultation Termination Event”: At any date at which (i) no Class of Control Eligible Certificates exists where such Class’s aggregate Certificate Balance is at least equal to 25% of the initial Certificate Balance of that Class, in each case, without regard to the application of any Cumulative Appraisal Reduction Amounts or (ii) a Holder of the Class F-RR Certificates is the majority Controlling Class Certificateholder and has irrevocably waived its right, in writing, to exercise any of the rights of the Controlling Class Certificateholder, and such rights have not been reinstated to a successor Controlling Class Certificateholder pursuant to Section 3.23(l); provided that no Consultation Termination Event resulting solely from the operation of clause (ii) will be deemed to have existed or be in continuance with respect to a successor Holder of the Class F-RR Certificates that has not irrevocably waived its right to exercise any of the rights of the Controlling Class Certificateholder; provided, further, that a Consultation Termination Event shall not be deemed to be continuing (other than with respect to a Consultation Termination Event pursuant to clause (ii)) if the Certificate Balances of all Classes of Principal Balance Certificates (other than the Control Eligible Certificates) have been reduced to zero; provided, further, that no Consultation Termination Event may occur with respect to the Loan-Specific Directing Certificateholder related to a Servicing Shift Whole Loan and the term “Consultation Termination Event” shall not be applicable to the Loan-Specific Directing Certificateholder related to such Servicing Shift Whole Loan; provided, further, that, with respect to a Serviced AB Whole Loan, no Consultation Termination Event will be deemed to be continuing unless a Control Appraisal Period is continuing under the related Intercreditor Agreement and a Consultation Termination Event is continuing. With respect to any Excluded Loan, a Consultation Termination Event shall be deemed continuing at all times.

 

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Control Appraisal Period”: With respect to a Subordinate Companion Loan relating to a Serviced AB Whole Loan, a “Control Appraisal Period” or equivalent term as defined under the related Intercreditor Agreement.

 

Control Eligible Certificates”: Any of the Class F-RR, Class G-RR, Class J-RR and Class NR-RR Certificates.

 

Control Termination Event”: At any date at which (i) no Class of Control Eligible Certificates exists that has a Certificate Balance (as notionally reduced by any Cumulative Appraisal Reduction Amounts allocable to such Class in accordance with Section 4.05(a)) that is at least equal to 25% of the initial Certificate Balance of such Class, (ii) such Mortgage Loan or Whole Loan is an Excluded Loan or (iii) a Holder of the Class F-RR Certificates becoming the majority Controlling Class Certificateholder and having irrevocably waived its right, in writing, to exercise any of the rights of the Controlling Class Certificateholder and such rights have not been reinstated to a successor Controlling Class Certificateholder pursuant to Section 3.23(l); provided that a Control Termination Event (other than a Control Termination Event pursuant to clause (iii)) shall not be deemed continuing if the Certificate Balances of all Classes of Certificates (other than the Control Eligible Certificates) have been reduced to zero as a result of principal payments on the Mortgage Loans; provided, further, that no Control Termination Event may occur with respect to the Loan-Specific Directing Certificateholder related to a Servicing Shift Whole Loan and the term “Control Termination Event” shall not be applicable to the Loan-Specific Directing Certificateholder related to such Servicing Shift Whole Loan; provided, further, that with respect to a Serviced AB Whole Loan, no Control Termination Event shall be deemed to be continuing unless a Control Appraisal Period is continuing under the related Intercreditor Agreement and a Control Termination Event is continuing. With respect to any Excluded Loan a Control Termination Event shall be deemed continuing at all times.

 

Controlling Class”: As of any date of determination, the most subordinate Class of Control Eligible Certificates then-outstanding that has a then-aggregate Certificate Balance (as notionally reduced by any Cumulative Appraisal Reduction Amounts allocable to such Class in accordance with Section 4.05(a)) at least equal to 25% of the initial Certificate Balance of that Class, or if no Class of Control Eligible Certificates meets the preceding requirement, the most senior Class of Control Eligible Certificates; the Controlling Class as of the Closing Date will be the Class NR-RR Certificates; provided that if, at any time, the Certificate Balances of all Control Eligible Certificates, as notionally reduced by any Cumulative Appraisal Reduction Amounts allocable to such Classes, have been reduced to zero, the Controlling Class shall be the most subordinate Class of Control Eligible Certificates that has a principal balance greater than zero; provided, further, that if at any time the Certificate Balance of the Class A-1, Class A-3, Class A-4, Class A-5, Class A-SB, Class A-S, Class B, Class C, Class D and Class E Certificates have been reduced to zero as a result of the allocation of principal payments on the Mortgage Loans, then the “Controlling Class” shall be the most subordinate Class of Control Eligible Certificates that has an aggregate Certificate Balance greater than zero without regard to the application of Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balance of such Class.

 

Controlling Class Certificateholders”: Each Holder (or Certificate 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. For the avoidance of doubt, whenever the term

 

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“Controlling Class Certificateholder” is used in this Agreement without further clarification, the parties hereto intend for such references to mean the applicable Controlling Class Certificateholder under the circumstances. The Trustee, the Master 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 Certificate Owners, if applicable) of the applicable Controlling Class and the Certificate Administrator shall promptly provide such list without charge to such Trustee, Master Servicer, Operating Advisor or Special Servicer, as applicable. The Trustee, the Master Servicer, the Special Servicer and the Operating Advisor may rely on any such list so provided.

 

Corporate Trust Office”: The principal corporate trust office of the Trustee and the Certificate Administrator at which at any particular time its corporate trust business with respect to this Agreement shall be administered, which office at the date of the execution of this Agreement is located (i) with respect to Certificate transfers and surrenders, at Wells Fargo Bank, 600 South 4th Street, 7th Floor, MAC: N9300-070, Minneapolis, Minnesota 55415, Attention: Certificate Transfer Services – 3650R 2021-PF1; and (ii) with respect to the Trustee at 9062 Old Annapolis Road, Columbia, Maryland, 21045-1951; and (iii) for all other purposes, to the Certificate Administrator at 9062 Old Annapolis Road, Columbia, Maryland 21045-1951, Attention: Corporate Trust Services (CMBS) 3650R 2021-PF1.

 

Corrected Loan”: Any Specially Serviced Loan that has become current and remained current for three (3) consecutive Periodic Payments (for such purposes taking into account any modification or amendment of the related Mortgage Loan or Companion Loan, as applicable, whether by a consensual modification or in connection with a bankruptcy, insolvency or similar proceeding involving the Mortgagor), and (provided that no other Servicing Transfer Event exists or has occurred with respect to such Mortgage Loan or Companion Loan during such preceding three (3) months, no additional default is foreseeable in the reasonable judgment of the Special Servicer and no other event or circumstance exists that causes such Mortgage Loan or Companion Loan, as applicable, to otherwise constitute a Specially Serviced Loan) the servicing of which the Special Servicer has returned to the Master Servicer pursuant to Section 3.19(a).

 

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

 

Credit Risk Retention Rule”: The final rule that was promulgated to implement the credit risk retention requirements (which such joint final rule has been codified, inter alia, at 17 C.F.R. § 246) 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 (79 F.R. 77601; pages 77740-77766), as such rule may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Department of Treasury, 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 in the adopting release (79 F.R. 77601 et seq.) or by the staff of any such agency, 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.

 

CREFI”: Citi Real Estate Funding Inc., a New York corporation, or its successor in interest.

 

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COVID Emergency”: The national emergency concerning the novel coronavirus disease (COVID-19) outbreak declared by the President on March 13, 2020 under the National Emergencies Act (50 U.S.C. 1601 et seq.).

 

COVID Modification”: A modification of, or forbearance or waiver in respect of, a Mortgage Loan that satisfies each of the following conditions:

 

(i)          prior to the modification or forbearance or waiver, the related Mortgagor certified to the Special Servicer that it is seeking limited relief from the terms of the related Mortgage Loan documents because it is experiencing a financial hardship due, directly or indirectly, to the COVID Emergency;

 

(ii)         the related modification or forbearance or waiver provides for (a) the temporary forbearance, waiver or deferral with respect to payment obligations or operating covenants, (b) the temporary alternative use of funds on deposit in any reserve account or escrow account for any purpose other than the explicit purpose provided for in the related Mortgage Loan documents, or (c) such other modification, forbearance or waiver that is related or incidental to clause (a) or clause (b) as may be reasonably determined by the Special Servicer in accordance with the Servicing Standard to address a financial hardship due, directly or indirectly, to the COVID Emergency;

 

(v)         if a default or event of default existed under the Mortgage Loan prior to the modification or forbearance or waiver, the related COVID Modification Agreement provides that such default or event of default is cured or deemed no longer outstanding;

 

(vi)       any COVID Modification Agreement (a) does not defer more than 3 monthly debt service payments under the Mortgage Loan, and (b) requires that any payments deferred in accordance with clause (ii)(a) above or reserve or escrow amounts used for alternate purposes in accordance with clause (ii)(b) above are repaid or restored in full within 21 months of the date of the first COVID Modification Agreement with respect to such Mortgage Loan; and

 

(vii)       the related COVID Modification Agreement may (but shall not be required to) provide that (a) the Mortgage Loan will be full recourse to the Mortgagor (and that such recourse obligation is a guaranteed obligation under the related borrower sponsor guaranty) if the certification described in clause (i) is false or misleading, and/or (b) that a cash trap or sweep event will be deemed to have occurred under the terms of the Mortgage Loan documents.

 

COVID Modification Agreement”: The agreement or agreements pursuant to which a COVID Modification is effected.

 

COVID Modification Fee”: As defined in Section 3.18(a).

 

COVID Modified Loan”: A Serviced Mortgage Loan and, if applicable, any related Serviced Companion Loan, that is subject to a COVID Modification.

 

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CREFC®”: The Commercial Real Estate Finance Council®, or any successor organization reasonably acceptable to the Certificate Administrator, the Master Servicer, the Special Servicer and, if no Control Termination Event is continuing, the Directing Certificateholder.

 

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 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.

 

CREFC® Appraisal Reduction Amount Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Appraisal Reduction Amount Template” 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 approved by the CREFC® for commercial mortgage securities transactions generally.

 

CREFC® Bond Level File”: The data file in the “CREFC® Bond Level File” format substantially in the form of and containing the information called for therein, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

CREFC® Collateral Summary File”: The data file in the “CREFC® Collateral Summary File” format substantially in the form of and containing the information called for therein, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

CREFC® Comparative Financial Status Report”: The monthly report in “Comparative Financial Status Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

CREFC® Delinquent Loan Status Report”: The monthly report in the “Delinquent Loan Status Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

CREFC® Financial File”: The data file in the “CREFC® Financial File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

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”: The monthly report in the “Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

CREFC® Intellectual Property Royalty License Fee”: With respect to each Mortgage Loan and REO Mortgage Loan and for any Distribution Date, the amount accrued during the related Interest Accrual Period at the CREFC® Intellectual Property Royalty License Fee Rate on the Stated Principal Balance of such Mortgage Loan or REO Mortgage Loan as of the close of business on the Distribution Date in such 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 related Mortgage Loan or REO Mortgage Loan is computed and shall be prorated for partial periods. For the avoidance of doubt, the CREFC® Intellectual Property Royalty License Fee shall be deemed payable by the Master Servicer from the Lower-Tier REMIC or Grantor Trust, as applicable.

 

CREFC® Intellectual Property Royalty License Fee Rate”: With respect to each Mortgage Loan and REO Mortgage 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® Investor Reporting Package”: The collection of reports specified by the CREFC® from time to time as the “CREFC® Investor Reporting Package.” As of the Closing Date, the CREFC® Investor Reporting Package contains eight (8) electronic files ((1) CREFC® Loan Setup File, (2) CREFC® Loan Periodic Update File, (3) CREFC® Property File, (4) CREFC® Bond Level File, (5) CREFC® Collateral Summary File, (6) CREFC® Financial File, (7) CREFC® Special Servicer Loan File and (8) CREFC® Schedule AL File) and nine (9) surveillance reports ((1) CREFC® Servicer Watch List, (2) CREFC® Delinquent Mortgage Loan Status Report, (3) CREFC® REO Status Report, (4) CREFC® Comparative Financial Status Report, (5) CREFC® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report, (6) CREFC® Operating Statement Analysis Report, (7) CREFC® NOI Adjustment Worksheet, (8) CREFC® Loan Level Reserve/LOC Report and (9) with respect to Mortgage Loans that have a Companion Loan, as applicable, the CREFC® Total Loan Report). In addition, the CREFC® Investor Reporting Package shall include the CREFC® Advance Recovery Report. In addition, the CREFC® Investor Reporting Package shall include the following nine (9) templates: (1) CREFC®

 

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Appraisal Reduction Amount Template, (2) CREFC® Servicer Realized Loss Template, (3) CREFC® Reconciliation of Funds Template, (4) CREFC® Historical Bond/Collateral Realized Loss Reconciliation Template, (5) CREFC® Historical Liquidation Loss Template, (6) CREFC® Interest Shortfall Reconciliation Template, (7) CREFC® Loan Modification Report, (8) CREFC® Loan Liquidation Report and (9) CREFC® REO Liquidation Report. The CREFC® Investor Reporting Package shall be substantially in the form of, and containing the information called for in, the downloadable forms of the “CREFC® IRP” 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 or reports as may from time to time be approved by the CREFC® for commercial mortgage backed securities transactions generally. For the purposes of the production of the CREFC® Comparative Financial Status Report by the Master Servicer or the Special Servicer of any such report that is required to state information for any period prior to the Cut-off Date, the Master Servicer or the Special Servicer, as the case may be, may conclusively rely (without independent verification), absent manifest error, on information provided to it by the Mortgage Loan Sellers or by the related Mortgagor or (x) in the case of such a report produced by the Master Servicer, by the Special Servicer (if other than the Master Servicer or an Affiliate thereof) and (y) in the case of such a report produced by the Special Servicer, by the Master Servicer (if other than the Special Servicer or an Affiliate thereof).

 

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 in the “CREFC® Loan Level Reserve/LOC Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

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

 

CREFC® Loan Periodic Update File”: The data file in the “CREFC® Loan Periodic Update File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

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CREFC® Loan Setup File”: The data file in the “CREFC® Loan Setup File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

CREFC® NOI Adjustment Worksheet”: The worksheet in the “NOI Adjustment Worksheet” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

CREFC® Operating Statement Analysis Report”: The report in the “Operating Statement Analysis Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

CREFC® Property File”: The data file in the “CREFC® Property File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

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 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 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 Status Report”: The monthly report in the “REO Status Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

CREFC® Schedule AL File”: The data file in the “Schedule AL File” format substantially in the form of and containing the information called for by Item 1111(h)(3) or Item 1125 of Regulation AB or Item 601(b)(102) of Regulation S-K under the Securities Act with respect to the Mortgage Loans, or such other form of presentation as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally, which in any case shall include all information required by Item 1111(h)(3) or Item 1125 of Regulation AB or Item 601(b)(102) of Regulation S-K under the Securities Act.

 

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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.

 

CREFC® Servicer Watch List”: A monthly report, as of each Determination Date, including and identifying each Non-Specially Serviced Loan satisfying the “CREFC® Portfolio Review Guidelines” approved from time to time by the CREFC® in the “CREFC® Servicer Watch List” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form (including other portfolio review guidelines) for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

CREFC® Special Servicer Loan File”: The data file in the “CREFC® Special Servicer Loan File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by CREFC® for commercial mortgage securities transactions generally.

 

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 Master Servicer.

 

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

 

Cross-Over Date”: The first Distribution Date on which the Certificate Balances of each Class of the Subordinate Certificates have (calculated without giving effect to the Principal Distribution Amount on such Distribution Date) all previously been reduced to zero as a result of the allocation of Realized Losses to such Subordinate Certificates.

 

Crossed Mortgage Loan Group”: Any two or more individual mortgage loans that are cross-collateralized and cross-defaulted with each other (it being understood that for the purposes of this Agreement each Crossed Mortgage Loan Group shall be treated as one Mortgage Loan). Each Crossed Mortgage Loan Group, if any, is identified by a separate letter under the column heading “Cross Collateralized Group” on the Mortgage Loan Schedule.

 

Crossed Underlying Loan”: With respect to any Crossed Mortgage Loan Group, a mortgage loan that is cross-collateralized and cross-defaulted with one or more other mortgage loans within such Crossed Mortgage Loan Group (it being understood that for the purposes of this Agreement each Crossed Mortgage Loan Group shall be treated as one Mortgage Loan). Each Crossed Underlying Loan, if any, is identified under the column heading “Cross Collateralized Group” on the Mortgage Loan Schedule.

 

Crossed Underlying Loan Repurchase Criteria”: With respect to any Crossed Mortgage Loan Group as to which one or more (but not all) of the Crossed Underlying Loans

 

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therein are affected by a Material Defect (the Crossed Underlying Loan(s) in such Crossed Mortgage Loan Group affected by such Material Defect, for purposes of this definition, the “affected Crossed Underlying Loans” and the other Crossed Underlying Loan(s) in such Crossed Mortgage Loan Group, for purposes of this definition, the “remaining Crossed Underlying Loans”) (i) the weighted average Debt Service Coverage Ratio for all the remaining Crossed Underlying Loans for the four most recently reported calendar quarters preceding the repurchase or substitution is not less than the greater of (a) the weighted average Debt Service Coverage Ratio for the entire such Crossed Mortgage Loan Group, including the affected Crossed Underlying Loan(s), for the four most recently reported calendar quarters preceding the repurchase or substitution, and (b) 1.25x, (ii) the weighted average LTV Ratio for all the remaining Crossed Underlying Loans determined at the time of repurchase or substitution based upon an Appraisal obtained by the Special Servicer at the expense of the related Mortgage Loan Seller is not greater than the least of (a) the weighted average LTV Ratio for the entire such Crossed Mortgage Loan Group, including the affected Crossed Underlying Loan(s), determined at the time of repurchase or substitution based upon an Appraisal obtained by the Special Servicer at the expense of the related Mortgage Loan Seller, (b) the weighted average LTV Ratio for the entire such Crossed Mortgage Loan Group, including the affected Crossed Underlying Loan(s), as of the Cut-off Date and (c) 75%, (iii) the related Mortgage Loan Seller, at its expense, furnishes the Trustee and the Certificate Administrator with an Opinion of Counsel that any modification relating to the repurchase or substitution of a Crossed Underlying Loan shall not cause an Adverse REMIC Event to occur, (iv) the related Mortgage Loan Seller causes the affected Crossed Underlying Loan to become not cross-collateralized and cross-defaulted with the remaining related Crossed Underlying Loans prior to such repurchase or substitution or otherwise forbears from exercising enforcement rights against the Primary Collateral for any Crossed Underlying Loan(s) remaining in the Trust (while the Trust forbears from exercising enforcement rights against the Primary Collateral for the Mortgage Loan removed from the Trust) and (v) (other than with respect to any Excluded Loan) unless a Control Termination Event is continuing, the Directing Certificateholder consents to the repurchase or substitution of the affected Crossed Underlying Loan, which consent shall not be unreasonably withheld, conditioned or delayed.

 

Cumulative Appraisal Reduction Amount”: As of any date of determination, the sum of (i) all Appraisal Reduction Amounts then in effect, and (ii) with respect to any AB Modified Loan, any Collateral Deficiency Amount then in effect. The Master Servicer and the Certificate Administrator may conclusively rely on the Special Servicer’s calculation or determination of any Cumulative Appraisal Reduction Amount with respect to a Mortgage Loan (other than a Non-Serviced Mortgage Loan). With respect to a Non-Serviced Mortgage Loan, the Special Servicer and the Certificate Administrator shall be entitled to conclusively rely on the applicable Non-Serviced Special Servicer’s or Non-Serviced Master Servicer’s, as applicable, calculation of any Appraisal Reduction Amount with respect to such Non-Serviced Mortgage Loan and on the Master Servicer’s calculation or determination of any Collateral Deficiency Amount with respect to such Non-Serviced Mortgage Loan.

 

Cure/Contest Period”: As defined in Section 12.01(b)(vii).

 

Custodial Exception Report”: As defined in Section 2.02(b).

 

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Custodian”: A Person who is at any time appointed by the Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files, which Person shall not be the Depositor, any of the Mortgage Loan Sellers or an Affiliate of any of them. The Certificate Administrator shall be the initial Custodian. Wells Fargo Bank, National Association will perform its duties as Custodian hereunder through its Document Custody division (including any agents or affiliates, as applicable, utilized hereby).

 

Cut-off Date”: With respect to each Mortgage Loan, the related Due Date of such Mortgage Loan in November 2021, or with respect to any Mortgage Loan that has its first Due Date after November 2021, the date that would have otherwise been the related Due Date in November 2021.

 

Cut-off Date Balance”: With respect to any Mortgage Loan or Companion Loan, the outstanding principal balance of such Mortgage Loan or Companion Loan, as of the Cut-off Date, after application of all payments of principal due on or before such date, whether or not received.

 

CX – 350 & 450 Water Street Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of October 14, 2021, by and between the holders of the respective promissory notes evidencing the CX – 350 & 450 Water Street Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

DBRS”: DBRS, Inc., and its successors in interest. If neither DBRS nor any successor remains in existence, “DBRS” 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 Master Servicer, the Directing Certificateholder and the Special Servicer and specific ratings of DBRS herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

Debt Service Coverage Ratio”: With respect to any Mortgage Loan, for any twelve-month period covered by an annual operating statement for the related Mortgaged Property, the ratio of (i) Net Operating Income produced by the related Mortgaged Property during such period to (ii) the aggregate amount of Periodic Payments (other than any Balloon Payment) due under such Mortgage Loan during such period; provided that with respect to the Mortgage Loans identified on Annex A-1 to the Prospectus as paying interest only for a specified period of time set forth in the related Mortgage Loan documents and then paying principal and interest, the related Periodic Payment will be calculated (for purposes of this definition only) to include interest and principal (based on the remaining amortization term indicated in the Mortgage Loan Schedule).

 

Default Interest”: With respect to any Mortgage Loan or Companion Loan and any Collection Period, all interest accrued in respect of such Mortgage Loan or Companion Loan during such Collection Period provided for in the related Mortgage Note or Mortgage as a result of a default (exclusive of late payment charges) that is in excess of interest at the related Mortgage Rate accrued on the unpaid principal balance of such Mortgage Loan or Companion Loan outstanding from time to time.

 

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Defaulted Loan”: A Mortgage Loan (other than a Non-Serviced Mortgage Loan) or a Serviced Whole Loan (i) that is delinquent at least sixty (60) days in respect of its Periodic Payments or delinquent in respect of its Balloon Payment, if any; provided that in respect of a Balloon Payment, such period shall be one hundred twenty (120) days after the related Maturity Date (or for such shorter period beyond the date on which the related Balloon Payment was due within which the refinancing or purchase referred to below is scheduled to occur pursuant to the commitment for refinancing or signed purchase agreement or on which such commitment or signed purchase agreement or on which such commitment or signed purchase agreement terminates) if the related Mortgagor has delivered to the Master Servicer or the Special Servicer (and in either such case the Master Servicer or the Special Servicer, as applicable shall promptly deliver a copy thereof to the other servicer), on or before the related Maturity Date, with (a) a written and fully executed (subject only to customary final closing conditions) commitment, letter of intent, or otherwise binding document for refinancing or similar document that is, in each case, binding upon an acceptable lender or (b) a signed purchase agreement, in the case of clause (a) or (b) (in each case, reasonably acceptable to the Special Servicer); and, in either case such delinquency to be determined without giving effect to any Grace Period permitted by the related Mortgage or Mortgage Note and without regard to any acceleration of payments under the related Mortgage and Mortgage Note or (ii) as to which the Master Servicer or Special Servicer has, by written notice to the related Mortgagor, accelerated the maturity of the indebtedness evidenced by the related Mortgage Note. For the avoidance of doubt, a defaulted Companion Loan does not constitute a “Defaulted Loan”.

 

Defeasance Accounts”: As defined in Section 3.18(j).

 

Defect”: As defined in Section 2.02(f).

 

Deficient Exchange Act Deliverable”: With respect to the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Custodian, the Certificate Administrator, the Trustee and each Servicing Function Participant and Additional Servicer retained by it (other than an Initial Sub-Servicer), 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 XI that does not conform to the applicable Reporting Requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder.

 

Deficient Valuation”: With respect to any Mortgage Loan or Serviced Whole Loan, as applicable, a valuation by a court of competent jurisdiction of the related Mortgaged Property in an amount less than the then outstanding principal balance of such Mortgage Loan or Serviced Whole Loan which valuation results from a proceeding initiated under the Bankruptcy Code.

 

Definitive Certificate”: Any Certificate in definitive, fully registered form without interest coupons. Initially, the Class R Certificates, Class Z Certificates, HRR Certificates and any Certificate issued pursuant to Section 5.02(c) and Section 5.02(d) shall be Definitive Certificates. For the avoidance of doubt, any HRR Certificate shall at all times during the Transfer Restriction Period be evidenced by Definitive Certificates.

 

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Delinquent Loan”: A Mortgage Loan that is delinquent at least sixty (60) days in respect of its Periodic Payments or Balloon Payment, if any, in either case such delinquency to be determined without giving effect to any Grace Period. For the avoidance of doubt, a delinquency that would have existed but for a COVID Modification shall not constitute a delinquency, for so long as the related Mortgagor is complying with the terms of such COVID Modification.

 

Denomination”: With respect to any Certificate or any beneficial interest in a Certificate the amount (i) (a) set forth on its face, (b) set forth on a schedule attached thereto or (c) in the case of any beneficial interest in a Book-Entry Certificate, the interest of the related Certificate Owner in the applicable Class of Certificates as reflected on the books and records of the Depository or related Depository Participant, as applicable, (ii) expressed in terms of initial Certificate Balance or initial Notional Amount, as applicable, and (iii) in an authorized denomination, as set forth in Section 5.01(a).

 

Depositor”: 3650 REIT Commercial Mortgage Securities II LLC, a Delaware limited liability company, or its successor in interest.

 

Depository”: DTC, or any successor Depository hereafter named. The nominee of the initial Depository for purposes of registering those Certificates that are to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times be a “clearing corporation” as defined in Section 8-102(3) of the UCC of the State of New York and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act.

 

Depository Participant”: A broker, dealer, bank or other financial institution or other Person for whom from time to time the Depository effects book-entry transfers and pledges of securities deposited with the Depository.

 

Designated Intercreditor Agreement”: As defined in the definition of “Intercreditor Agreement”.

 

Designated Servicing Documents”: With respect to any Mortgage Loan or Serviced Whole Loan, collectively the following documents:

 

(1)                (A) a copy of the executed Mortgage Note(s) for such Mortgage Loan (or, alternatively, if the original executed Mortgage Note(s) have been lost, a copy of a lost note affidavit and indemnity with a copy of such Mortgage Note(s)), and (B) in the case of a Serviced Whole Loan, a copy of the executed Mortgage Note(s) for the related Companion Loan;

 

(2)               a copy of the related Loan Agreement, if any;

 

(3)               a copy of the Mortgage;

 

(4)               a copy of the lock box agreement or cash management agreement, if any, relating to such Mortgage Loan or Serviced Whole Loan, if any;

 

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(5)               any pre-funding insurance review documentation and insurance certificates (for Insurance Policies other than any title Insurance Policy and environmental Insurance Policy) or a marked up commitment therefor;

 

(6)               a copy of any related title Insurance Policy or a marked up commitment therefor;

 

(7)               a copy of any environmental Insurance Policy or a marked up commitment therefor;

 

(8)               legal description of the related Mortgaged Property;

 

(9)               a copy of the related escrow agreement and the related security agreement (in each case, if such item is a document separate from the Loan Agreement and the Mortgage);

 

(10)             a copy of the agreement governing post-closing obligations (if such item is a document separate from the Loan Agreement and the Mortgage), if any;

 

(11)             a copy of the closing statement and/or sources and uses statement;

 

(12)             the related Mortgage Loan Seller’s asset summary, if any (provided that the delivery of such item shall not result in any liability to the related Mortgage Loan Seller);

 

(13)             the related Mortgagor tax ID;

 

(14)             a copy of an approved operating budget, if applicable;

 

(15)             a copy of the related Ground Lease relating to such Mortgage Loan, if any; and

 

(16)             in the case of a Serviced Whole Loan or a Mortgage Loan with related mezzanine debt, a copy of the related Intercreditor Agreement(s).

 

Designated Site”: The Internet website used by the Depositor and Mortgage Loan Sellers to accept and upload the Diligence Files.

 

Determination Date”: With respect to any Distribution Date, the eleventh (11th) day of each calendar month (or, if the eleventh (11th) calendar day of that month is not a Business Day, then the next Business Day), commencing in December 2021.

 

Diligence File”: With respect to each Mortgage Loan and any related Companion Loan(s), if applicable, collectively the following documents in electronic format:

 

(a)                A copy of each of the following documents:

 

(i)                the Mortgage Note, endorsed on its face or by allonge attached to the Mortgage Note, without recourse, to the order of the Trustee or in blank and further showing a complete, unbroken chain of endorsement from the originator

 

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(or, if the original Mortgage Note has been lost, an affidavit to such effect from the applicable Mortgage Loan Seller or another prior holder, together with a copy of the Mortgage Note and an indemnity properly assigned and endorsed to the Trustee);

 

(ii)                the Mortgage, together with a copy of any intervening Assignments of Mortgage, in each case with evidence of recording indicated thereon or certified to have been submitted for recording (if in the possession of the applicable Mortgage Loan Seller);

 

(iii)              any related Assignment of Leases and of any intervening assignments (if such item is a document separate from the Mortgage), with evidence of recording indicated thereon or certified to have been submitted for recording (if in the possession of the applicable Mortgage Loan Seller);

 

(iv)              all modification, consolidation, assumption, written assurance and substitution agreements in those instances in which the terms or provisions of the Mortgage or Mortgage Note have been modified or the Mortgage Loan has been assumed or consolidated;

 

(v)               the policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, or, if such policy has not been issued or located, an irrevocable, binding commitment (which may be a marked version of the policy that has been executed by an authorized representative of the title company or an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title Insurance Policy;

 

(vi)              any UCC Financing Statements, related amendments and continuation statements in the possession of the applicable Mortgage Loan Seller;

 

(vii)             any Intercreditor Agreement relating to permitted debt of the Mortgagor, including any Intercreditor Agreement relating to a Serviced Whole Loan or a Mortgage Loan with any related mezzanine debt;

 

(viii)            any loan agreement, escrow agreement, security agreement or letter of credit relating to such Mortgage Loan or a related Serviced Whole Loan;

 

(ix)               any ground lease, related ground lessor estoppel, environmental indemnity or guaranty relating to a Mortgage Loan or a related Serviced Whole Loan;

 

(x)                any property management agreement relating to such Mortgage Loan or a related Serviced Whole Loan;

 

(xi)              any franchise agreements and comfort letters or similar agreements relating to a Mortgage Loan or Serviced Whole Loan and, with respect to any franchise agreement, comfort letter or similar agreement, any assignment of such

 

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agreements or any notice to the franchisor of the transfer of a Mortgage Loan or Serviced Whole Loan and a request for confirmation that the Trust is a beneficiary of such comfort letter or other agreement, or for the issuance of a new comfort letter in favor of the Trust, as the case may be;

 

(xii)              any lock-box or cash management agreement relating to a Mortgage Loan or a Serviced Whole Loan;

 

(xiii)             all related environmental reports;

 

(xiv)             in the case of the Westchester Loan REMIC, a copy of the related Loan REMIC Declaration and the related filed IRS Forms SS-4 (with the responsible party’s social security number redacted) and 8811; and

 

(xv)              all related environmental Insurance Policies;

 

(b)                a copy of any engineering reports or property condition reports;

 

(c)                other than with respect to a hotel property (except with respect to tenanted commercial space within a hotel property), copies of a rent roll;

 

(d)                for any office, retail, industrial or warehouse property, a copy of all leases and estoppels and subordination and non-disturbance agreements delivered to the related Mortgage Loan Seller;

 

(e)                a copy of all legal opinions (excluding attorney-client communications between the related Mortgage Loan Seller and its counsel that are privileged communications or constitute legal or other due diligence analyses), if any, delivered in connection with the closing of the related Mortgage Loan;

 

(f)                a copy of (i) all Mortgagor’s certificates of hazard insurance and/or (ii) hazard Insurance Policies or other applicable Insurance Policies (to the extent not previously included as part of this definition), in each case, if any, delivered in connection with the closing of the related Mortgage Loan;

 

(g)                a copy of the Appraisal for the related Mortgaged Property or Mortgaged Properties;

 

(h)                for any Mortgage Loan that the related Mortgaged Property is leased to a single tenant, a copy of the lease;

 

(i)                 a copy of the applicable Mortgage Loan Seller’s asset summary;

 

(j)                 a copy of all surveys for the related Mortgaged Property or Mortgaged Properties;

 

(k)                a copy of all zoning reports;

 

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(l)                 a copy of financial statements of the related Mortgagor;

 

(m)               a copy of operating statements for the related Mortgaged Property or Mortgaged Properties;

 

(n)                a copy of all UCC searches;

 

(o)                a copy of all litigation searches;

 

(p)                a copy of all bankruptcy searches;

 

(q)                a copy of the origination settlement statement;

 

(r)                 a copy of any Insurance Consultant Report;

 

(s)                a copy of the organizational documents of the related Mortgagor and any guarantor;

 

(t)                 unless already included in the origination settlement statement, a copy of any escrow statements related to the escrow account balances as of the Mortgage Loan origination date;

 

(u)                a copy of any closure letter (environmental); and

 

(v)                a copy of any environmental remediation agreement for the related Mortgaged Property or Mortgaged Properties;

 

in each such case, as and to the extent that the originator received such documents or information in connection with the origination of such Mortgage Loan. If any of the items identified above were not included or obtained in connection with the origination of such Mortgage Loan (other than any document that customarily would not be included in connection with the origination of the Mortgage Loan because such document is inapplicable to the origination of a Mortgage Loan of that structure or type, taking into account whether or not such Mortgage Loan has any Additional Debt), the Diligence File shall include a statement to that effect; provided that no information that is proprietary to the related originator or Mortgage Loan Seller or any draft documents or privileged or internal communications or credit underwriting analysis shall constitute part of the Diligence File. It is not required to include any of the same items identified above again if such items have already been included under another clause of the definition of “Diligence File”, and the Diligence File shall include a statement to that effect. The Mortgage Loan Seller may, without any obligation to do so, include such other documents or information as part of the Diligence File that such Mortgage Loan Seller believes should be included to enable the Asset Representations Reviewer to perform the Asset Review on such Mortgage Loan; provided that such documents or information are clearly labeled and identified.

 

Diligence File Certificate”: As defined in Section 2.01(h).

 

Directing Certificateholder”: The initial Directing Certificateholder shall be 3650 Real Estate Investment Trust 2 LLC, a Delaware limited liability company. Thereafter, the Directing Certificateholder shall be the Controlling

 

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Class Certificateholder (or a representative thereof) selected by more than 50% of the Controlling Class Certificateholders, (by Certificate Balance, as determined by the Certificate Registrar from time to time); provided, however, that (i) absent that selection, or (ii) until a Directing Certificateholder is so selected or (iii) upon receipt of a notice from a majority of the Controlling Class Certificateholders, by Certificate Balance, that a Directing Certificateholder is no longer designated, the Controlling Class Certificateholder that owns the largest aggregate Certificate Balance of the Controlling Class (or a representative thereof) will be the Directing Certificateholder; provided, however, that, in the case of this clause (iii), if no one Holder owns the largest aggregate Certificate Balance of the Controlling Class, then there will be no Directing Certificateholder until appointed in accordance with the terms of this Agreement. During a Control Termination Event, the Directing Certificateholder shall only retain its consultation rights to the extent specifically provided for herein. During a Consultation Termination Event, there will be no Directing Certificateholder. The Depositor shall promptly provide the name and contact information for the initial Directing Certificateholder upon request of any party to this Agreement and any such requesting party may conclusively rely on the name and contact information provided by the Depositor. If the Controlling Class Certificateholder has elected to irrevocably waive its right to appoint a Directing Certificateholder or to exercise any of the rights of the Controlling Class Certificateholder, there will be no Directing Certificateholder and no party will be entitled to exercise any of the rights of the Directing Certificateholder until such time as a Controlling Class Certificateholder is reinstated pursuant to Section 3.23(l) and a new Directing Certificateholder is appointed in accordance with the terms hereof. The Certificate Administrator and the other parties hereto shall assume that the identity of the Directing Certificateholder has not changed until such parties receive written notice of a replacement of the Directing Certificateholder from a party holding the requisite interest in the Controlling Class (as confirmed by the Certificate Registrar), or the resignation of the then-current Directing Certificateholder.

 

Directing Holder”:

 

(a)                with respect to any Mortgage Loan or Serviced Whole Loan (other than any Non-Serviced Mortgage Loan, Servicing Shift Mortgage Loan or Serviced AB Whole Loan), the Directing Certificateholder;

 

(b)               with respect to any Serviced AB Whole Loan, (i) prior to a related Control Appraisal Period, the related AB Whole Loan Controlling Holder and (ii) after a related Control Appraisal Period, the Directing Certificateholder; and

 

(c)                with respect to any Servicing Shift Whole Loan, (i) prior to the related Servicing Shift Securitization Date, the Loan-Specific Directing Certificateholder and (ii) on and after the related Servicing Shift Securitization Date, the party identified as the “directing certificateholder” (or other analogous term) under the related Non-Serviced PSA.

 

No Control Termination Event or a Consultation Termination Event shall affect the rights of a non-Directing Holder. Whenever the term “Directing Holder” is used in this Agreement without further clarification, the parties hereto intend for such reference to mean the applicable Directing Holder under the circumstances.

 

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Directly Operate”: With respect to any REO Property (except with respect to a Non-Serviced Mortgaged 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 REO Property, the holding of such REO Property primarily for sale to customers, the use of such REO Property in a trade or business conducted by the Trust or on behalf of a Companion Holder or the performance of any construction work on the REO Property, other than through an Independent Contractor; provided, however, that an REO 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 REO Property or takes other actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).

 

Disclosable Special Servicer Fees”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) and any related Serviced Companion Loan (including any related REO Property (other than any interest in REO Property acquired with respect to any Non-Serviced Mortgage Loan)), 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 Mortgagor, any manager, any guarantor or indemnitor in respect of a Mortgage Loan or Serviced Companion Loan and any purchaser of any Mortgage Loan or Serviced Companion Loan or REO Property) in connection with the disposition, workout or foreclosure of any such Mortgage Loan, the management or disposition of any REO 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 3.11.

 

Disclosure Parties”: As defined in Section 3.13(e).

 

Discount Rate”: As defined in Section 4.01(e).

 

Dispute Resolution Consultation”: As defined in Section 2.03(l)(iii).

 

Dispute Resolution Cut-off Date”: As defined in Section 2.03(l)(i).

 

Disqualified Non-U.S. Tax Person”: With respect to the Class R Certificates, any Non-U.S. Tax Person or its agent other than (a) a Non-U.S. Tax Person that holds the Class R Certificates in connection with the conduct of a trade or business within the United States and has furnished the Transferor and the Certificate Registrar with an effective IRS Form W-8ECI or (b) a Non-U.S. Tax Person that has delivered to both the Transferor and the Certificate Administrator an opinion of a nationally recognized tax counsel to the effect that the transfer of the Class R Certificates to it is in accordance with the requirements of the Code and the regulations promulgated thereunder and that such transfer of the Class R Certificates will not be disregarded for federal income tax purposes.

 

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Disqualified Organization”: Any of (i) the United States, any State or political subdivision thereof, any possession of the United States or any agency or instrumentality of any of the foregoing (other than an instrumentality which is a corporation if all of its activities are subject to tax and, except for Freddie Mac, a majority of its board of directors is not selected by such governmental unit), (ii) a foreign government, any international organization or any agency or instrumentality of any of the foregoing, (iii) any organization that is exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of the Code 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), (iv) rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of the Code and (v) any other Person so designated by the Trustee or the Certificate Administrator based upon an Opinion of Counsel as provided to the Trustee or the Certificate Administrator (at no expense to the Trustee or the Certificate Administrator) that the holding of an Ownership Interest in a Class R Certificate by such Person may cause any Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding or any Person having an Ownership Interest in any Class of Certificates (other than such Person) to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the Transfer of an Ownership Interest in a Class R Certificate to such Person. The terms “United States,” “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.

 

Distribution Accounts”: Collectively, the Upper-Tier REMIC Distribution Account, the Excess Interest Distribution Account and the Lower-Tier REMIC Distribution Account (and in each case any subaccount thereof), all of which may be subaccounts of a single Eligible Account.

 

Distribution Date”: The fourth (4th) Business Day following each Determination Date, beginning in December 2021.

 

Distribution Date Statement”: As defined in Section 4.02(a).

 

Do Not Hire List”: The list, as may be updated at any time, provided by the Depositor to the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor or the Asset Representations Reviewer, which lists certain parties identified by the Depositor as having failed to comply (after any applicable cure period) with their respective obligations under Article XI or as having failed to comply (after any applicable cure period) with any similar Regulation AB reporting requirements under any other securitization transaction. As of the Closing Date, no parties appear on the Do Not Hire List.

 

DTC”: The Depository Trust Company, a New York corporation.

 

Due Date”: With respect to (i) any Mortgage Loan or Companion Loan, as applicable, on or prior to its Maturity Date, the day of the month set forth in the related Mortgage Note on which each Periodic Payment thereon is scheduled to be first due, (ii) any Mortgage Loan or Companion Loan, as applicable, after the Maturity Date therefor, the day of the month set forth in the related Mortgage Note on which each Periodic Payment on such Mortgage Loan or Companion Loan, as applicable, had been scheduled to be first due, and (iii) any REO Loan, the

 

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day of the month set forth in the related Mortgage Note on which each Periodic Payment on the related Mortgage Loan or Companion Loan, as applicable, had been scheduled to be first due.

 

EDGAR”: As defined in Section 11.03.

 

EDGAR-Compatible Format”: With respect to (a) the Initial Schedule AL File, the Initial Schedule AL Additional File, the CREFC® Schedule AL File and the Schedule AL Additional File, XML format or such other format as mutually agreed to between the Depositor, the Certificate Administrator and the Master Servicer and (b) any report, file or document other than those listed in clause (a) above, any format compatible with EDGAR, including HTML, Word or clean, searchable PDFs.

 

Eligible Account”: Any of the following: (i) a segregated account or accounts maintained with a federal or state chartered depository institution or trust company (including the Trustee or the Certificate Administrator), (A) the long-term deposit rating or long-term unsecured debt obligations or deposits of which are rated at least “A-” by S&P and at least “A2” by Moody’s, if the deposits are to be held in such account for thirty (30) days or more, and the short-term debt obligations or deposits of which have a short-term rating of not less than “A-1” from S&P and not less than “P-1” from Moody’s, if the deposits are to be held in such account for less than thirty (30) days and (B) and the short-term debt obligations or deposits of which have a short-term rating of not less than “F1” from Fitch (to the extent rated by Fitch), if the deposits are to be held in such account for less than thirty (30) days and the long-term unsecured debt obligations or deposits of which are rated at least “A” by Fitch (to the extent rated by Fitch), if the deposits are to be held in such account for less than thirty (30) days; (ii) an account or accounts maintained with PNC Bank, National Association so long as PNC Bank, National Association’s long-term unsecured debt or deposit rating is at least “BBB” from S&P, “A2” by Moody’s and “A-” from Fitch (to the extent rated by Fitch) (if the deposits are to be held in the account for more than thirty (30) days) or PNC Bank, National Association’s short-term deposit or short-term unsecured debt rating is at least “A-1” from S&P (or “A-2” by S&P so long as the long-term unsecured debt obligations of such depository institution or trust company are rated no less than “BBB” by S&P), “P-1” by Moody’s and “F2” from Fitch (to the extent rated by Fitch) (if the deposits are to be held in the account for thirty (30) days or less); (iii) such other account or accounts that, 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) and (ii) 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 not satisfied with respect to such account, which account may be an account maintained by or with the Certificate Administrator, the Trustee, the Master Servicer or the Special Servicer; (iv) any other account or accounts not listed in clauses (i) and (ii) above with respect to which a Rating Agency Confirmation has been obtained from each and every Rating Agency and Companion Loan Rating Agency Confirmations have been obtained with respect to any Serviced Companion Loan Securities, which account may be an account maintained by or with the Certificate Administrator, the Trustee, the Master Servicer or the Special Servicer; or (v) a segregated trust account or accounts maintained with the corporate trust department of a federal or state chartered depository institution or trust company that has a long-term unsecured debt rating of at least “A-” from S&P (if the deposits are to be held in the account for more than thirty (30) days) and “A2” from Moody’s or a short-term unsecured debt rating of at least “A-1” from S&P and “P-1” from Moody’s (if the deposits are to be held in the account for thirty (30) days or less) and that, in either case, has

 

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corporate trust powers, acting in its fiduciary capacity, provided that any state chartered depository institution or trust company is subject to regulation regarding fiduciary funds substantially similar to 12 C.F.R. § 9.10(b). Eligible Accounts may bear interest. No Eligible Account shall be evidenced by a certificate of deposit, passbook or other similar instrument.

 

Eligible Asset Representations Reviewer”: An entity that (a) is the special servicer, operating advisor or asset representations reviewer on a transaction rated by any of Moody’s, Fitch, KBRA, DBRS, S&P or Morningstar and that has not been a special servicer, operating advisor or asset representations reviewer on a transaction for which Moody’s, Fitch, KBRA, DBRS, S&P and Morningstar has qualified, downgraded or withdrawn its rating or ratings of one or more classes of certificates for such transaction citing servicing or other relevant concerns with such special servicer, operating advisor or asset representations reviewer, as applicable, as the sole or material factor in such rating action, (b) can and will make the representations and warranties set forth in Section 6.01(d), (c) is not (and is neither affiliated nor Risk Retention Affiliated with) a Sponsor, a Mortgage Loan Seller, any originator, the Master Servicer, the Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Holder, the Directing Certificateholder, the Retaining Sponsor or any of their respective Affiliates, (d) has not performed (and is neither affiliated nor Risk Retention Affiliated with any party hired to perform) any due diligence, loan underwriting, brokerage, borrower advisory or similar services with respect to any Mortgage Loan or any related Companion Loan prior to the Closing Date for or on behalf of any Sponsor, any Mortgage Loan Seller, any Underwriter, any party to this Agreement, the Directing Holder, the Directing Certificateholder or any of their respective Affiliates, or have been paid any fees, compensation or other remuneration by any of them in connection with any such services, and (e) that does not directly or indirectly, through one or more Affiliates or otherwise, own any interest in any Certificates, any Mortgage Loans, any Companion Loan or any securities backed by a Companion Loan or otherwise have any financial interest in the securitization transaction to which this Agreement relates, other than in fees from its role as Asset Representations Reviewer (or as Operating Advisor, if applicable).

 

Eligible Operating Advisor”: An entity (a) that is a special servicer or operating advisor on a CMBS transaction rated by the Rating Agencies (including, in the case of the Operating Advisor, this transaction) but has not been a 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 or other relevant concerns with the Operating Advisor in its capacity as the special servicer or operating advisor on such CMBS transaction 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 6.01(c), 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 neither affiliated nor Risk Retention Affiliated with) the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, a Sponsor, the Retaining Sponsor, a Mortgage Loan Seller, any Borrower Party, the Directing Holder, the Directing Certificateholder, a trustee, a certificate administrator, a master servicer or a special servicer with respect to the securitization of a Companion Loan, or any of their respective Affiliates or 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 the

 

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Special Servicer; (e) that (x) has been regularly engaged in the business of analyzing and advising clients in CMBS matters and that has 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, any Mortgage Loan, any Companion Loan, any securities backed by a Companion 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 and Asset Representations Reviewer (to the extent it also acts as the Asset Representations Reviewer).

 

Enforcing Party”: The person obligated to or that elects pursuant to Section 2.03 to enforce the rights of the Trust against the related Mortgage Loan Seller with respect to the Repurchase Request.

 

Enforcing Servicer”: As defined in Section 2.03(k).

 

Environmental Assessment”: An “environmental site assessment” as such term is defined in, and meeting the criteria of, the American Society of Testing Materials Standard Section E 1527-00, or any successor thereto.

 

Environmental Indemnity Agreement”: With respect to any Mortgage Loan, any agreement between the Mortgagor (or a guarantor thereof) and the originator of such Mortgage Loan relating to the Mortgagor’s obligation to remediate or monitor or indemnify for any environmental problems relating to the related Mortgaged Property.

 

ERISA”: The Employee Retirement Income Security Act of 1974, as amended.

 

ERISA Plan”: As defined in Section 5.03(n).

 

ERISA Restricted Certificate”: Any Certificate (other than a Class R or Class Z Certificate) that does not meet the requirements of Prohibited Transaction Exemption 89-90 (as such exemption may be amended from time to time) as of the date of the acquisition of such Certificate by a Plan. As of the Closing Date, each of the Class G-RR, Class J-RR and Class NR-RR Certificates is an ERISA Restricted Certificate.

 

Escrow Payment”: Any payment received by the Master Servicer or the Special Servicer for the account of any Mortgagor for application toward the payment of real estate taxes, assessments, insurance premiums, ground lease rents and similar items in respect of the related Mortgaged Property, including amounts for deposit to any reserve account.

 

Euroclear”: The Euroclear System or any successor thereto.

 

Excess Interest”: With respect to each ARD Loan, interest accrued on such ARD Loan after the Anticipated Repayment Date allocable to the Excess Rate, including all interest accrued thereon to the extent permitted by applicable law and the related Mortgage Loan documents. The Excess Interest shall not be an asset of any Trust REMIC, but rather shall be an asset of the Grantor Trust.

 

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Excess Interest Distribution Account”: The trust account or accounts created and maintained as a separate account or accounts (or as a subaccount of the Distribution Account) by the Certificate Administrator pursuant to Section 3.04(c), which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wells Fargo Bank, National Association, as Trustee, and the registered Holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1, Class Z Certificates, Excess Interest Distribution Account”, and which must be an Eligible Account (or a subaccount of an Eligible Account). The Excess Interest Distribution Account shall be held solely for the benefit of the Holders of the Class Z Certificates. The Excess Interest Distribution Account shall not be an asset of any Trust REMIC, but rather shall be an asset of the Grantor Trust.

 

Excess Modification Fee Amount”: With respect to either the Master Servicer or the Special Servicer, any Corrected Loan and any particular modification, waiver, extension or amendment with respect to such Corrected Loan that gives rise to the payment of a Workout Fee, an amount equal to the aggregate of any Excess Modification Fees paid by or on behalf of the related Mortgagor with respect to the related Mortgage Loan (and each related Serviced Companion Loan, unless prohibited under the related Intercreditor Agreement) and received and retained by the Master Servicer or the Special Servicer, as applicable, as compensation within the prior twelve (12) months of such modification, waiver, extension or amendment, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee and, as provided in Section 3.11(c), only after the Special Servicer has received $25,000 in Workout Fees with respect to such Corrected Loan.

 

Excess Modification Fees”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Whole Loan, the sum of (A) the excess, if any, of (i) any and all Modification Fees with respect to a modification, waiver, extension or amendment of any of the terms of such Mortgage Loan or Serviced Whole Loan, as applicable, over (ii) all unpaid or unreimbursed additional expenses (including, without limitation, reimbursement of Advances and interest on Advances to the extent not otherwise paid or reimbursed by the Mortgagor but excluding Special Servicing Fees, Workout Fees and Liquidation Fees) outstanding or previously incurred on behalf of the Trust with respect to the related Mortgage Loan or Serviced Whole Loan, as applicable, and reimbursed from such Modification Fees and (B) expenses previously paid or reimbursed from Modification Fees as described in the preceding clause (A), which expenses have been recovered from the related Mortgagor or otherwise. With respect to each of the Master Servicer and the Special Servicer, the Excess Modification Fees collected and earned by such Person from the related Mortgagor (taken in the aggregate with any other Excess Modification Fees collected and earned by such Person from the related Mortgagor within the prior twelve (12) months of the collection of the current Excess Modification Fees) will be subject to a cap of the greater of (i) 1.0% of the outstanding principal balance of the related Mortgage Loan or Serviced Whole Loan, as applicable, on the closing date of the related modification, extension, waiver or amendment (after giving effect to such modification, extension, waiver or amendment) and (ii) $25,000.

 

Excess Prepayment Interest Shortfall”: With respect to any Distribution Date, the aggregate of any Prepayment Interest Shortfalls resulting from any principal prepayments made on the Mortgage Loans to be included in the Available Funds for such Distribution Date that are not covered by the Master Servicer’s Compensating Interest Payment (or the portion thereof

 

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allocated to the Mortgage Loans) for such Distribution Date and the portion of the compensating interest payments allocable to any Non-Serviced Mortgage Loan to the extent received from the related Non-Serviced Master Servicer.

 

Excess Rate”: With respect to each ARD Loan, the excess of (i) the applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set forth in the Mortgage Loan Schedule.

 

Exchange Act”: The Securities Exchange Act of 1934, as amended from time to time and the rules and regulations of the Commission thereunder.

 

Excluded Controlling Class Holder”: With respect to any Excluded Controlling Class Loan and/or Excluded Loan, the Directing Certificateholder or any Controlling Class Certificateholder, as applicable, that is a Borrower Party with respect to such Excluded Controlling Class Loan and/or Excluded Loan. Immediately upon obtaining actual knowledge of the Directing Certificateholder or any Controlling Class Certificateholder becoming an “Excluded Controlling Class Holder”, such Directing Certificateholder or Controlling Class Certificateholder, as applicable, shall provide notice in the form of Exhibit P-1E to the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator, which notice shall be physically delivered in accordance with Section 13.05 and shall specifically identify the Excluded Controlling Class Holder and the related Mortgage Loan, specifying whether it is (A) an Excluded Controlling Class Loan or (B) both an Excluded Loan and the subject Excluded Controlling Class Loan. Additionally, any Excluded Controlling Class Holder shall also send to the Certificate Administrator a notice substantially in the form of Exhibit P-1F, which notice shall provide each of the CTSLink User ID associated with such Excluded Controlling Class Holder, and which notice shall direct the Certificate Administrator to restrict such Excluded Controlling Class Holder’s access to the Certificate Administrator’s Website as and to the extent provided in this Agreement. As of the Closing Date, there are no Excluded Controlling Class Holders related to the Trust.

 

Excluded Controlling Class Loan”: Any Mortgage Loan or Whole Loan with respect to which, as of any date of determination, the Directing Certificateholder or any Controlling Class Certificateholder is a Borrower Party. For the avoidance of doubt, if a Mortgage Loan or Whole Loan is not an Excluded Controlling Class Loan, such Mortgage Loan or Whole Loan is also not an Excluded Loan as to either the Directing Certificateholder or the Holder of the majority of the Controlling Class. As of the Closing Date, there are no Excluded Controlling Class Loans related to the Trust.

 

Excluded Information”: With respect to any Excluded Controlling Class Loan, any information solely related to such Excluded Controlling Class Loan, which shall include the Asset Status Reports, Final Asset Status Reports (or summaries thereof), any inspection reports related to Specially Serviced Loans conducted by the Special Servicer (including any Excluded Special Servicer) and which may include any Operating Advisor reports delivered to the Certificate Administrator regarding the Special Servicer’s net present value determination or any Appraisal Reduction Amount calculations delivered pursuant to Section 3.26(d), and any Officer’s Certificates delivered by the Trustee, the Master Servicer or the Special Servicer, supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance, or such

 

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other information and reports designated as Excluded Information by the Special Servicer, the Master Servicer or the Operating Advisor, as applicable, but in each case other than information with respect to such Excluded Controlling Class Loan that is aggregated with information of other Mortgage Loans at a pool level. For the avoidance of doubt, any information aggregated on a pool level basis and any file or report contained in the CREFC® Investor Reporting Package (CREFC® IRP) (other than the CREFC® Special Servicer Loan File relating to any Excluded Controlling Class Loan) and any Schedule AL Additional File shall not be considered “Excluded Information”. Excluded Information delivered to the Certificate Administrator must be delivered in accordance with Section 3.30.

 

Excluded Loan”: Any Mortgage Loan or Whole Loan if, as of any date of determination, the Directing Holder or (if the Directing Holder is the Directing Certificateholder) the Holder of the majority of the Controlling Class (by Certificate Balance), is a Borrower Party. For the avoidance of doubt, any Excluded Loan is also an Excluded Controlling Class Loan. As of the Closing Date, there are no Excluded Loans related to the Trust.

 

Excluded Special Servicer”: With respect to any Excluded Special Servicer Loan, a replacement special servicer that is not a Borrower Party and satisfies all of the eligibility requirements applicable to the Special Servicer set forth in Section 7.01(g). As of the Closing Date, there are no Excluded Special Servicer related to this Trust.

 

Excluded Special Servicer Information”: With respect to any Excluded Special Servicer Loan, any information solely related to such Excluded Special Servicer Loan and/or the related Mortgaged Properties, which shall include the Asset Status Reports, Final Asset Status Reports (or summaries thereof), any Operating Advisor reports delivered to the Certificate Administrator regarding an Excluded Special Servicer’s net present value determination, any Appraisal Reduction Amount calculations delivered pursuant to Section 3.26(d), and any Officer’s Certificates delivered by the Master Servicer or the applicable Excluded Special Servicer supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance, or such other information and reports designated as Excluded Special Servicer Information by the applicable Excluded Special Servicer, the Master Servicer or the Operating Advisor, as applicable. For the avoidance of doubt, any file or report contained in the CREFC® Investor Reporting Package (CREFC® IRP) (other than the CREFC® Special Servicer Loan File relating to any Excluded Special Servicer Loan) and any Schedule AL Additional File shall not be considered “Excluded Special Servicer Information”.

 

Excluded Special Servicer Loan”: Any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Whole Loan with respect to which, as of any date of determination, the Special Servicer obtains knowledge that it is a Borrower Party. For the avoidance of doubt, there are no Excluded Special Servicer Loans related to the Trust as of the Closing Date.

 

Extended Cure Period”: As defined in Section 2.03(b).

 

Fannie Mae”: Federal National Mortgage Association or any successor thereto.

 

FDIC”: Federal Deposit Insurance Corporation or any successor thereto.

 

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Final Asset Status Report”: With respect to any Specially Serviced Loan, the initial Asset Status Report, together with such other data or supporting information provided by the Special Servicer to the applicable Directing Holder that does not include any communication (other than the Final Asset Status Report) between the Special Servicer and such Directing Holder with respect to such Specially Serviced 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 Holder pursuant to the Directing Holder Approval Process or following completion of the ASR Consultation Process, as applicable. For the avoidance of doubt, the Special Servicer may issue more than one Final Asset Status Report with respect to any Specially Serviced Loan in accordance with the procedures described in Section 3.19.

 

Final Dispute Resolution Election Notice”: As defined in Section 2.03(l)(iii).

 

Final Recovery Determination”: A reasonable determination by the Special Servicer, in consultation with the applicable Directing Holder (other than with respect to an Excluded Loan and only if no Consultation Termination Event is continuing), with respect to any Defaulted Loan (and, if applicable, any defaulted Companion Loan) or Corrected Loan or REO Property (other than a Mortgage Loan or REO Property, as the case may be, that was purchased by (i) any of the Mortgage Loan Sellers pursuant to Section 6 of the applicable Mortgage Loan Purchase Agreement, (ii) the Special Servicer or other person pursuant to Section 3.16(b), any Companion Holder or any mezzanine lender pursuant to Section 3.16 or (iii) the Master Servicer, the Special Servicer, the Holders of the Controlling Class, or the Holders of the Class R Certificates pursuant to Section 9.01) that there has been a recovery of all Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenue and other payments or recoveries that, in the Special Servicer’s judgment, which judgment was exercised without regard to any obligation of the Special Servicer to make payments from its own funds pursuant to Section 3.07(b), will ultimately be recoverable. With respect to all Mortgage Loans other than an applicable Excluded Loan if no Control Termination Event is continuing, the applicable Directing Holder will have ten (10) Business Days to review and approve each such recovery determination by the Special Servicer; provided, however, that if the Directing Holder fails to approve or disapprove any recovery determination within ten (10) Business Days of receipt of the initial recovery determination, such consent shall be deemed given.

 

Fitch”: Fitch Ratings, Inc., and its successors in interest. If neither Fitch nor any successor remains in existence, “Fitch” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, the Master Servicer, the Directing Holder and the Special Servicer, and specific ratings of Fitch herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

Form 8-K Disclosure Information”: As defined in Section 11.07.

 

Form 15 Suspension Notification”: As defined in Section 11.08.

 

Freddie Mac”: Federal Home Loan Mortgage Corporation or any successor thereto.

 

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GACC”: German American Capital Corporation, a Maryland corporation, or its successor in interest.

 

Gain-on-Sale Entitlement Amount”: With respect to each Distribution Date, an amount equal to the aggregate amount of (a) the aggregate portion of the Interest Distribution Amount for each Class of Regular Certificates that would remain unpaid as of the close of business on the related Distribution Date, (b) the amount by which the Principal Distribution Amount exceeds the aggregate amount that would actually be distributed on the related Distribution Date in respect of such Principal Distribution Amount and (c) any Realized Losses outstanding immediately after such Distribution Date, to the extent such amounts would occur on such Distribution Date or would be outstanding immediately after such Distribution Date, as applicable, without the inclusion of the Gain-on-Sale Remittance Amount as part of the definition of Available Funds.

 

Gain-on-Sale Proceeds”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), the excess of (i) Liquidation Proceeds net of any related Liquidation Expenses (or the portion of such net Liquidation Proceeds payable to the related Mortgage Loan pursuant to the related Intercreditor Agreement) over (ii) the Purchase Price for such Mortgage Loan on the date on which Liquidation Proceeds were received. Gain-on-Sale Proceeds shall exclude any amounts allocated as Yield Maintenance Charges, recovery of any late payment charges and Default Interest or recovery of any assumption fees and Modification Fees pursuant to Section 3.02.

 

Gain-on-Sale Remittance Amount”: For each Distribution Date, an amount equal to the lesser of (i) the amount on deposit in the Gain-on-Sale Reserve Account on such Distribution Date, and (ii) the Gain-on-Sale Entitlement Amount.

 

Gain-on-Sale Reserve Account”: A custodial account or accounts (or subaccount of the Distribution Account) created and maintained by the Certificate Administrator, pursuant to Section 3.04(e) on behalf of the Trustee for the benefit of the Certificateholders, which shall initially be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wells Fargo Bank, National Association, as Trustee, for the benefit of the registered holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1, Gain-on-Sale Reserve Account”. Any such account shall be an Eligible Account or a subaccount of an Eligible Account.

 

Grace Period”: The number of days before a payment default is an event of default under the related Mortgage Loan documents and/or before the imposition of late payment charges and/or Default Interest.

 

Grantor Trust”: A segregated asset pool within the Trust Fund treated as a “grantor trust” under subpart E, part I of subchapter J of the Code, consisting of the assets described in the Preliminary Statement.

 

Grantor Trust Provisions”: Subpart E of part I of subchapter J of the Code and Treasury Regulations Section 301.7701-4(c).

 

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Ground Lease”: The ground lease pursuant to which any Mortgagor holds a leasehold interest in the related Mortgaged Property and any estoppels or other agreements executed and delivered by the ground lessor in favor of the lender under the Mortgage Loan.

 

Hazardous Materials”: Any dangerous, toxic or hazardous pollutants, chemicals, wastes or substances, including, without limitation, those so identified pursuant to CERCLA or any other federal, state or local environmental related laws and regulations, and specifically including, without limitation, asbestos and asbestos-containing materials, polychlorinated biphenyls, radon gas, petroleum and petroleum products, urea formaldehyde and any substances classified as being “in inventory,” “usable work in process” or similar classification which would, if classified as unusable, be included in the foregoing definition.

 

HRR Certificates”: As defined in the Preliminary Statement.

 

Huntsville Office Portfolio Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of July 26, 2021, by and between the holders of the respective promissory notes evidencing the Huntsville Office Portfolio Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

Icon One Daytona Intercreditor Agreement”: That certain Co-Lender Agreement dated as of November 18, 2021, by and between the holders of the respective promissory notes evidencing the Icon One Daytona Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

Impermissible Asset Representations Reviewer Affiliate”: As defined in Section 3.32.

 

Impermissible Operating Advisor Affiliate”: As defined in Section 3.32.

 

Impermissible Risk Retention Affiliate”: As defined in Section 3.32.

 

Impermissible TPP Affiliate”: As defined in Section 3.32.

 

Independent”: When used with respect to any accountants, a Person who is “independent” within the meaning of Rule 2-01(b) of the Commission’s Regulation S-X. When used with respect to any specified Person, any such Person who (i) is in fact independent of the Trustee, the Certificate Administrator, the Depositor, the Master Servicer, the Special Servicer, the Directing Certificateholder, the Directing Holder, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer and all Affiliates thereof, (ii) does not have any material direct financial interest in or any material indirect financial interest in any of the Trustee, the Certificate Administrator, the Depositor, the Master Servicer, the Special Servicer, the Directing Certificateholder, the Directing Holder, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer or any Affiliate thereof and (iii) is not connected with the Trustee, the Certificate Administrator, the Depositor, the Master Servicer, the Special Servicer, the Directing Certificateholder, the Directing Holder, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or

 

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together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer or any Affiliate thereof as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions; provided, however, that a Person shall not fail to be Independent of the Trustee, the Certificate Administrator, the Depositor, the Master Servicer, the Special Servicer, the Directing Certificateholder, the Directing Holder, the Companion Holders or any Affiliate thereof merely because such Person is the beneficial owner of 1% or less of any class of securities issued by the Trustee, the Certificate Administrator, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Directing Certificateholder, the Directing Holder, the Companion Holders or any Affiliate thereof, as the case may be, so long as such ownership constitutes less than 1% of the total assets of such Person. For the avoidance of doubt, the exception in the proviso above for ownership of 1% or less of any class of securities shall not apply with respect to the Operating Advisor or the Asset Representations Reviewer.

 

Independent Contractor”: Either (i) any Person that would be an “independent contractor” with respect to the Trust within the meaning of Section 856(d)(3) of the Code if the Trust were a real estate investment trust (except that the ownership test set forth in that Section shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of any Class of Certificates, or such other interest in any Class of Certificates as is set forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the Certificate Administrator, the Master Servicer, any Companion Holder or the Trust, delivered to the Trustee, any Companion Holder, the Certificate Administrator and the Master Servicer), so long as the Trust does not receive or derive any income from such Person and provided that the relationship between such Person and the Trust is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5) (except that neither the Master Servicer nor the Special Servicer shall be considered to be an Independent Contractor under the definition in this clause (i) unless an Opinion of Counsel has been delivered to the Trustee and the Certificate Administrator to that effect) or (ii) any other Person (including the Master Servicer and the Special Servicer) upon receipt by the Trustee, the Certificate Administrator, the Operating Advisor and the Master Servicer of an Opinion of Counsel, which shall be at no expense to the Trustee, the Certificate Administrator, the Master Servicer, the Operating Advisor or the Trust, to the effect that the taking of any action in respect of any REO Property by such Person, subject to any conditions therein specified, that is otherwise herein contemplated to be taken by an Independent Contractor will not cause such REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code or cause any income realized in respect of such REO Property to fail to qualify as Rents from Real Property.

 

Initial Cure Period”: As defined in Section 2.03(b).

 

Initial Requesting Certificateholder”: The first Certificateholder or Certificate Owner to deliver a Repurchase Request as described in Section 2.03(k) with respect to a Mortgage Loan. For the avoidance of doubt, there shall not be more than one Initial Requesting Certificateholder with respect to any Mortgage Loan.

 

Initial Schedule AL Additional File”: The data file prepared by or on behalf of the Depositor containing additional information or schedules regarding data points in the Initial Schedule AL File in accordance with Item 1111(h)(4) of Regulation AB and Item 601(b)(103) of

 

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Regulation S-K under the Securities Act and filed as Exhibit 103 to the Form ABS-EE incorporated by reference into the Prospectus.

 

Initial Schedule AL File”: The data file(s) prepared by, or on behalf of, the Depositor containing the information required by Item 1111(h)(3) or Item 1125 of Regulation AB or Item 601(b)(102) of Regulation S-K under the Securities Act and filed as Exhibit 102 and, if applicable, the Initial Schedule AL Additional File to the Form ABS-EE incorporated by reference into the Prospectus.

 

Initial Sub-Servicer”: With respect to each Mortgage Loan that is subject to a Sub-Servicing Agreement with the Master Servicer as of the Closing Date, the Sub-Servicer under any such Sub-Servicing Agreement. As of the Closing Date, each entity listed on Exhibit FF is an Initial Sub-Servicer.

 

Initial Sub-Servicing Agreement”: Any Sub-Servicing Agreement in effect as of the Closing Date.

 

Inquiry” and “Inquiries”: As each is defined in Section 4.07(a).

 

Institutional Accredited Investor”: An institutional investor which is an “accredited investor” within the meaning of paragraphs (1), (2), (3) or (7) of Rule 501(a) of Regulation D under the Act or any entity in which all of the equity owners come within such paragraphs.

 

Insurance and Condemnation Proceeds”: All proceeds received under any Insurance Policy or in connection with the full or partial condemnation of a Mortgaged Property, in either case, to the extent such proceeds are not applied to the restoration of the related Mortgaged Property or released to the Mortgagor or any tenants or ground lessors, in either case, in accordance with the Servicing Standard (and in the case of any Mortgage Loan with a related Companion Loan, to the extent any portion of such proceeds are received by the Master Servicer or Certificate Administrator in connection with such Mortgage Loan, pursuant to the allocations set forth in the related Intercreditor Agreement) and the REMIC Provisions.

 

Insurance Consultant Report”: With respect to each Mortgage Loan, a report or other summary prepared either by the related Mortgage Loan Seller or a third party insurance consultant on behalf of the related Mortgage Loan Seller that provides a summary of all Insurance Policies covering the related Mortgaged Property(ies), identifying the insurance provider, applicable ratings of each such provider and the amount of coverage and any applicable deductible.

 

Insurance Policy”: With respect to any Mortgage Loan, any hazard insurance policy, flood insurance policy, title policy or other insurance policy that is maintained from time to time in respect of such Mortgage Loan or the related Mortgaged Property.

 

Intercreditor Agreement”: Each intercreditor agreement relating to a Whole Loan described in the Preliminary Statement (each a “Designated Intercreditor Agreement”) and any intercreditor agreement entered into in connection with the issuance to the direct or indirect equity holders in the Mortgagor of any existing mezzanine indebtedness or any future mezzanine indebtedness permitted under the related Mortgage Loan documents. Solely with respect to a Joint

 

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Mortgage Loan treated as a Serviced Whole Loan in accordance with Section 3.34 hereof (to the extent there is no related Intercreditor Agreement governing the relationship of the promissory notes comprising such Joint Mortgage Loan), the applicable Mortgage Loan documents together with the provisions of Section 3.34 hereof.

 

Interest Accrual Amount”: With respect to any Distribution Date and any Class of Regular Certificates, the amount equal to the interest for the related Interest Accrual Period accrued at the Pass-Through Rate for such Class on the related Certificate Balance or Notional Amount, as applicable, outstanding immediately prior to such Distribution Date. Calculations of interest for each Interest Accrual Period will be made on the basis of a 360-day year consisting of twelve 30-day months.

 

Interest Accrual Period”: For each Distribution Date, the calendar month immediately preceding the month in which such Distribution Date occurs.

 

Interest Distribution Amount”: With respect to any Class of Regular Certificates for any Distribution Date, an amount equal to (A) the sum of (i) the Interest Accrual Amount with respect to such Class of Certificates for such Distribution Date and (ii) the Interest Shortfall, if any, with respect to such Class of Certificates for such Distribution Date, less (B) any Excess Prepayment Interest Shortfall allocated to such Class of Certificates on such Distribution Date.

 

For purposes of clause (B) above, the Excess Prepayment Interest Shortfall, if any, for each Distribution Date shall be allocated to each Class of Regular Certificates in an amount equal to the product of (i) the amount of such Excess Prepayment Interest Shortfall and (ii) a fraction, the numerator of which is the Interest Accrual Amount for such Class for such Distribution Date and the denominator of which is the aggregate Interest Accrual Amounts for all Classes of Regular Certificates for such Distribution Date.

 

Interest Reserve Account”: The segregated non-interest bearing trust account or sub-account created and maintained by the Certificate Administrator pursuant to Section 3.04, which shall be initially titled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wells Fargo Bank, National Association, as Trustee, for the benefit of the Holders of Commercial Mortgage Pass-Through Certificates, Series 2021-PF1, Interest Reserve Account” and which must be an Eligible Account or a sub-account of an Eligible Account. The Interest Reserve Account shall be an asset of the Lower-Tier REMIC.

 

Interest Shortfall”: With respect to any Distribution Date for any Class of Regular Certificates, the sum of (a) the portion of the Interest Distribution Amount for such Class remaining unpaid as of the close of business on the preceding Distribution Date, and (b) to the extent permitted by applicable law, (i) in the case of a Class of Principal Balance Certificates, one month’s interest on that amount remaining unpaid at the Pass-Through Rate applicable to such Class for the current Distribution Date and (ii) in the case of the Class X Certificates, one-month’s interest on that amount remaining unpaid at the WAC Rate for such Distribution Date.

 

Interested Person”: As of the date of any determination, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator, the Trustee, the Directing Holder, any Sponsor, any Borrower Party,

 

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any Independent Contractor engaged by the Special Servicer, or any known Affiliate of any of the preceding entities. With respect to a Whole Loan if it is a Defaulted Loan, the Depositor, the Master Servicer, the Special Servicer (or any Independent Contractor engaged by the Special Servicer), or the trustee for the securitization of a Companion Loan, and each related Companion Holder or its representative, any holder of a related mezzanine loan, or any known Affiliate of any such party described above.

 

Investment Account”: As defined in Section 3.06(a).

 

Investment Representation Letter”: As defined in Section 5.03(e), in the form of Exhibit C.

 

Investor Certification”: A certificate (which may be in electronic form), substantially in the form of Exhibit P-1A, Exhibit P-1B, Exhibit P-1C or Exhibit P-1D to this Agreement or in the form of an electronic certification contained on the Certificate Administrator’s Website (which may be a click-through confirmation), representing (i) that such Person executing the certificate is a Certificateholder or the Directing Certificateholder (in each case, to the extent such Person is not a Certificateholder), a beneficial owner of a Certificate, a prospective purchaser of a Certificate or a Companion Holder (or any investment advisor, manager or other representative of the foregoing), (ii) that either (a) such Person is not a Borrower Party, in which case such Person shall have access to all the reports and information made available to Certificateholders via the Certificate Administrator’s Website hereunder, or (b) such Person is a Borrower Party in which case (1) if such Person is the Directing Certificateholder or Controlling Class Certificateholder, as applicable, such Person shall have access to all the reports and information made available to Certificateholders via the Certificate Administrator’s Website hereunder other than any Excluded Information as set forth herein, or (2) if such Person is not the Directing Certificateholder or Controlling Class Certificateholder, as applicable, the Certificate Administrator shall provide such Person access only to the Distribution Date Statements prepared by the Certificate Administrator, (iii) (other than with respect to a Companion Holder) that, except in the case of a prospective purchaser of a Certificate, such Person has received a copy of the final Prospectus and (iv) such Person agrees to keep any Privileged Information confidential and will not violate any securities laws; provided, however, that any Excluded Controlling Class Holder (i) will be permitted to reasonably request and obtain in accordance with Section 4.02(f) any Excluded Information relating to any Excluded Controlling Class Loan with respect to which such Excluded Controlling Class Holder is not a Borrower Party (if such Excluded Information is not otherwise available to such Excluded Controlling Class Holder via the Certificate Administrator’s Website) and (ii) will be considered a Privileged Person for all other purposes, except with respect to its ability to obtain information with respect to any related Excluded Controlling Class Loan.

 

Investor Q&A Forum”: As defined in Section 4.07(a).

 

Investor Registry”: As defined in Section 4.07(b).

 

Joint Mortgage Loan”: A Mortgage Loan evidenced by Mortgage Note(s) contributed to the Trust by more than one Mortgage Loan Seller. The Mortgage Loans secured by the Mortgaged Properties identified on Exhibit B as “CX – 350 & 450 Water Street” and “Huntsville Office Portfolio” are Joint Mortgage Loans.

 

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KBRA”: Kroll Bond Rating Agency, LLC, and its successors in interest. If neither KBRA nor any successor remains in existence, “KBRA” 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 Master Servicer, the Directing Certificateholder and the Special Servicer and specific ratings of KBRA herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

Late Collections”: With respect to any Mortgage Loan, Whole Loan, or Companion Loan, all amounts received thereon prior to the related Determination Date, whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late payments or collections of principal or interest due in respect of such Mortgage Loan, Whole Loan or Companion Loan, as applicable (without regard to any acceleration of amounts due thereunder by reason of default), on a Due Date prior to the immediately preceding Determination Date and not previously recovered. With respect to any REO Loan, all amounts received in connection with the related REO Property prior to the related Determination Date, whether as Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which represent late collections of principal or interest due or deemed due in respect of such REO Loan or the predecessor Mortgage Loan, Whole Loan or Companion Loan, as applicable (without regard to any acceleration of amounts due under the predecessor Mortgage Loan, Whole Loan, or Companion Loan, as applicable, by reason of default), on a Due Date prior to the immediately preceding Determination Date and not previously recovered. The term “Late Collections” shall specifically exclude Penalty Charges. With respect to any Whole Loan, as used in this Agreement, Late Collections shall refer to such portion of Late Collections to the extent allocable to the related Mortgage Loan or related Companion Loan, as applicable, pursuant to the terms of the related Intercreditor Agreement.

 

Legal Fee Reserve Account”: The account created and maintained by the Certificate Administrator pursuant to Section 3.04(b), in the name of the “Legal Fee Reserve Account”, into which the amounts set forth in Section 3.04(b) shall be deposited directly and which must be an Eligible Account.

 

Liquidation Event”: With respect to any Mortgage Loan or any REO Property (and the related REO Loan), any of the following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery Determination is made with respect to such Mortgage Loan; (iii) such Mortgage Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan or REO Property is purchased by the Special Servicer, or by any Companion Holder or any mezzanine lender (as applicable) pursuant to Section 3.16 (and the related Intercreditor Agreement, as applicable); (v) such Mortgage Loan or REO Property is purchased by the Special Servicer, the Master Servicer, the Holders of the majority of the applicable Controlling Class or the Holders of the Class R Certificates pursuant to Section 9.01 or acquired by the Sole Certificateholder in exchange for its Certificates pursuant to Section 9.01; or (vi) such Mortgage Loan or REO Property is sold by the Special Servicer pursuant to the terms of this Agreement.

 

Liquidation Expenses”: All customary, reasonable and necessary “out of pocket” costs and expenses incurred by the Special Servicer in connection with a liquidation of any

 

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Specially Serviced Loan or REO Property (except with respect to a Non-Serviced Mortgaged Property) pursuant to Section 3.16 (including, without limitation, legal fees and expenses, committee or referee fees and, if applicable, brokerage commissions and conveyance taxes).

 

Liquidation Fee”: A fee payable to the Special Servicer with respect to (i) each Specially Serviced Loan or REO Property (except with respect to a Non-Serviced Mortgaged Property) as to which the Special Servicer receives (a) a full, partial or discounted payoff from the related Mortgagor or (b) any Liquidation Proceeds or Insurance and Condemnation Proceeds (including with respect to the related Companion Loan, if applicable) or REO Property (in any case, other than amounts for which a Workout Fee has been paid, or will be payable) or (ii) any Loss of Value Payment or Purchase Price paid by a Mortgage Loan Seller with respect to any Mortgage Loan, equal to the product of the Liquidation Fee Rate and the proceeds of such full, partial or discounted payoff or other partial payment or the Liquidation Proceeds or Insurance and Condemnation Proceeds (net of the related costs and expenses associated with the related liquidation) related to such liquidated Specially Serviced Loan or REO Property, as the case may be; provided, however, that no Liquidation Fee shall be payable with respect to (a) the purchase of any Specially Serviced Loan by the Special Servicer or any Affiliate thereof (except if such Affiliate purchaser is the Directing Holder or any Affiliate thereof; provided, however, that if no Control Termination Event exists, and if the Directing Holder or an Affiliate thereof purchases any Specially Serviced Loan within ninety (90) days after the Special Servicer delivers to such Directing Holder for its approval the initial Asset Status Report with respect to such Specially Serviced Loan, then the Special Servicer will not be entitled to a Liquidation Fee in connection with such purchase by the Directing Holder or its Affiliates), (b) any event described in clause (iv) of the definition of “Liquidation Proceeds” (or any substitution in lieu of a repurchase) so long as such repurchase, substitution or Loss of Value Payment occurs prior to the termination of the Extended Cure Period, (c) any event described in clauses (v), (vi) and (vii) of the definition of “Liquidation Proceeds”, as long as, with respect to a purchase pursuant to clause (vi) of the definition of “Liquidation Proceeds”, a purchase occurs within ninety (90) days of such holder’s purchase option first becoming exercisable during that period prior to such Mortgage Loan becoming a Corrected Loan pursuant to the related Intercreditor Agreement, (d) with respect to a Serviced Companion Loan, (x) a repurchase of such Serviced Companion Loan by the applicable Mortgage Loan Seller for a breach of a representation or warranty or for a defective or deficient mortgage loan documentation under an Other Pooling and Servicing Agreement within the time period (or extension of such time period) provided for such repurchase in such Other Pooling and Servicing Agreement if such repurchase occurs prior to the termination of such extended period provided in such Other Pooling and Servicing Agreement or (y) a purchase of such Serviced Companion Loan by any applicable party to the Other Pooling and Servicing Agreement pursuant to a clean-up call or similar liquidation of the Other Securitization; (e) the purchase of all of the Mortgage Loans and REO Properties in connection with an optional termination of the Trust; or (f) if a Mortgage Loan or Serviced Whole Loan becomes a Specially Serviced Loan solely because of a Servicing Transfer Event described in clause (i) or (ii) of the definition of “Servicing Transfer Event”, Liquidation Proceeds are received within ninety (90) days following the related Maturity Date as a result of such Mortgage Loan or Serviced Whole Loan being refinanced or otherwise repaid in full (but, if a Liquidation Fee is not payable due to the application of any of clauses (a) through (e) above, the Special Servicer may still collect and retain a Liquidation Fee and similar fees from the related Mortgagor to the extent provided for in, or not prohibited by, the related loan documents); provided that the Liquidation Fee with respect to any Specially Serviced Loan will

 

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be reduced by the amount of any Excess Modification Fees paid by or on behalf of the related Mortgagor with respect to the related Mortgage Loan and any related Companion Loan, or REO Property and received by the Special Servicer as compensation within the prior twelve (12) months, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee; provided, however, that no Liquidation Fee will be less than $25,000. No Liquidation Fee shall be payable in connection with a Loss of Value Payment by a Mortgage Loan Seller, if the applicable Mortgage Loan Seller makes such Loss of Value Payment during the Initial Cure Period.

 

Liquidation Fee Rate”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan, Specially Serviced Loan or REO Property as to which a Liquidation Fee is payable, a rate equal to the lesser of (a) such rate as would result in a Liquidation Fee of $1,000,000 and (b) 1.0% with respect to each Mortgage Loan (other than a Non-Serviced Mortgage Loan), each Specially Serviced Loan and each REO Property; provided, however, that if the rate in clause (b) above would result in a Liquidation Fee that would be less than $25,000 in circumstances where a Liquidation Fee is to be paid, then such rate as would yield a Liquidation Fee equal to $25,000.

 

Liquidation Proceeds”: Cash amounts received by or paid to the Master Servicer or the Special Servicer in connection with: (i) the liquidation (including a payment in full) of a Mortgaged Property or other collateral constituting security for a Defaulted Loan or defaulted Companion Loan, if applicable, through a trustee’s sale, foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof required to be released to the related Mortgagor in accordance with applicable law and the terms and conditions of the related Mortgage Note and Mortgage; (ii) the realization upon any deficiency judgment obtained against a Mortgagor; (iii) any sale of (A) a Specially Serviced Loan pursuant to Section 3.16(a) or (B) any REO Property pursuant to Section 3.16(b); (iv) the repurchase of a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase Agreement; (v) the purchase of a Mortgage Loan or REO Property by the Holders of the majority of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates pursuant to Section 9.01; (vi) the purchase of any Specially Serviced Loan or an REO Property by (a) the applicable Subordinate Companion Holder or (b) the related mezzanine lender pursuant to Section 3.16 and the related Intercreditor Agreement; or (vii) the transfer of any Loss of Value Payments from the Loss of Value Reserve Fund to the Collection Account in accordance with Section 3.05(g) (provided that, for the purpose of determining the amount of the Liquidation Fee (if any) payable to the Special Servicer in connection with such Loss of Value Payment, the full amount of such Loss of Value Payment shall be deemed to constitute “Liquidation Proceeds” from which the Liquidation Fee (if any) is payable as of such time such Loss of Value Payment is made by the applicable Mortgage Loan Seller). With respect to any Whole Loan, as used in this Agreement, Liquidation Proceeds shall refer to such portion of Liquidation Proceeds to the extent allocable to the related Mortgage Loan or related Companion Loan, as applicable, pursuant to the terms of the related Intercreditor Agreement.

 

Loan Agreement”: With respect to any Mortgage Loan or Serviced Whole Loan, the loan agreement, if any, between the related originator(s) and the Mortgagor, pursuant to which such Mortgage Loan or Serviced Whole Loan, as applicable, was made.

 

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Loan Seller Defeasance Rights and Obligations”: As defined in Section 3.18(i).

 

Loan-Specific Directing Certificateholder”: With respect to a Servicing Shift Mortgage Loan, the “Controlling Holder”, the “Directing Certificateholder”, the “Directing Holder”, the “Directing Lender” or any analogous concept as set forth under the related Intercreditor Agreement. Prior to the applicable Servicing Shift Securitization Date, the Loan-Specific Directing Certificateholder with respect to the related Servicing Shift Mortgage Loan will be the holder of the related Servicing Shift Lead Note as set forth in Exhibit S. On and after the applicable Servicing Shift Securitization Date, there will be no Loan-Specific Directing Certificateholder under this Agreement with respect to the related Servicing Shift Whole Loan. As of the Closing Date, there are no Loan-Specific Directing Certificateholders with respect to the Trust.

 

Loss of Value Payment”: As defined in Section 2.03(b).

 

Loss of Value Reserve Fund”: The “outside reserve fund” (within the meaning of Treasury Regulations Section 1.860G-2(h)) designated as such pursuant to Section 3.04(i). The Loss of Value Reserve Fund will be part of the Trust Fund but not part of the Grantor Trust or any Trust REMIC.

 

Lower-Tier Distribution Amount”: As defined in Section 4.01(c).

 

Lower-Tier Principal Amount”: With respect to any Class of Lower-Tier Regular 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 Preliminary Statement, 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 Distribution Date immediately prior to such date of determination (determined as adjusted pursuant to Section 1.02(iii)), and as set forth in Section 4.01(c)).

 

Lower-Tier Regular Interests”: Any of the Class LA-1, Class LA-3, Class LA-4, Class LA-5, Class LA-SB, Class LA-S, Class LB, Class LC, Class LD, Class LE, Class LF-RR, Class LG-RR, Class LJ-RR and Class LNR-RR Uncertificated Interests.

 

Lower-Tier REMIC”: One of two separate REMICs comprising a portion of the Trust Fund, the assets of which consist of the Mortgage Loans (other than the assets held by the Westchester Loan REMIC and the Excess Interest), the Westchester Loan REMIC Regular Interest and the proceeds thereof (exclusive of Excess Interest), any REO Property with respect thereto (or an allocable portion thereof, in the case of any Serviced Mortgage Loan) or the Trust’s beneficial interest in any REO Property with respect to a Non-Serviced Whole Loan, such amounts as shall from time to time be held in the Collection Account (other than with respect to any Companion Loan), the related portion of the REO Account, if any, the Interest Reserve Account, the Gain-on-Sale Reserve Account, the Lower-Tier REMIC Distribution Account, and all other properties included in the Trust Fund that are not in any other Trust REMIC or the Grantor Trust, except for the Loss of Value Reserve Fund.

 

Lower-Tier REMIC Distribution Account”: The segregated account, accounts or sub-accounts created and maintained by the Certificate Administrator (on behalf of the Trustee)

 

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pursuant to Section 3.04(b) in trust for the Certificateholders, which shall initially be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wells Fargo Bank, National Association, as Trustee, for the benefit of the registered holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1, Lower-Tier REMIC Distribution Account”. Any such account, accounts or sub-accounts shall be an Eligible Account.

 

LTV Ratio”: With respect to any Mortgage Loan, as of any date of determination, a fraction, expressed as a percentage, the numerator of which is the scheduled principal balance of such Mortgage Loan, as of such date (assuming no defaults or prepayments on such Mortgage Loan prior to that date), and the denominator of which is the Appraised Value of the related Mortgaged Property.

 

MAI”: Member of the Appraisal Institute.

 

Major Decision”: As defined in Section 6.08(a).

 

Major Decision Reporting Package”: means, with respect to any Major Decision for which it is processing, a written report by the Special Servicer describing in reasonable detail (i) the background and circumstances requiring action of the Special Servicer and (ii) the proposed course of action recommended. Each such report at the option of the Special Servicer may be in the form of an Asset Status Report.

 

Majority Owned Affiliate”: As defined in the Credit Risk Retention Rules.

 

Master Servicer”: With respect to each of the Mortgage Loans, Midland Loan Services, a Division of PNC Bank, National Association and its successors in interest and assigns, or any successor appointed as allowed herein.

 

Master Servicer Decision”: With respect to a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or a Serviced Whole Loan, (a) any decision or Mortgagor request with respect to (i) defeasances identified in Section 3.18(h), Section 3.18(i), Section 3.18(j) or Section 3.18(l), (ii) collections, record keeping, reporting, payment processing and Companion Paying Agent functions pursuant to Section 3.02, Section 3.03(b), Section 3.04(a), Section 3.04(c) and Section 3.04(d), Section 3.05(a), Section 3.05(i), Section 3.10 (regarding full payoff of a Non-Specially Serviced Loan), Section 3.12, Section 3.17(b), Section 3.19(c), Section 4.01(l) or Section 4.07 (responses to NRSRO inquiries), (iii) inspections of Mortgaged Properties securing Non-Specially Serviced Loans pursuant to Section 3.12, (iv) property insurance and tax matters identified in Section 3.03 or Section 3.07, (v) Advances (including nonrecoverability determinations) pursuant to Section 3.03(c), Section 3.17(c) or Section 4.03, and (vi) any note-splitting amendment to an Intercreditor Agreement, and (b) any decision which the Master Servicer is to make under (i) Section 2.03 (regarding notice of material default, material defect, or repurchase claims), (ii) Section 3.01 (general servicing of the Non-Specially Serviced Mortgage Loans) other than (A) any Mortgagor request, (B) a decision to release any reserve to a Mortgagor if such decision would constitute a Major Decision; (C) a decision to modify or take action under any covenants regarding cash trap triggers; or (D) unless required by the Mortgage Loan Documents, a decision to modify any covenant setting for reserve level requirements or a decision

 

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that a Mortgagor has failed to increase reserve requirements as required by the Mortgage Loan Documents, or (iii) Section 3.06 (investment of funds held in Accounts held by the Master Servicer), Section 3.11 (regarding the Master Servicer's compensation, including waivers of compensation due the Master Servicer), Section 3.13 (access to information), Section 3.17(e) (modification of or amendment to Intercreditor Agreements), Section 3.19 (whether a Servicing Transfer Event has occurred with respect to such Mortgage Loan or Serviced Whole Loan), Section 3.20 (Subservicing Agreements), Section 3.22 (contact with Directing Holder and Operating Advisor), Section 3.24 (Intercreditor Agreements), Section 3.27 (Companion Paying Agents), Section 3.28 (Companion Register), Section 3.33 (litigation control) and Section 4.05 (Appraisal Reduction Amounts and calculations made by the Master Servicer with respect to such amounts).

 

Master Servicer Remittance Date”: The Business Day immediately preceding each Distribution Date.

 

Material Defect”: With respect to any Mortgage Loan, a Defect in any Mortgage File or a Breach, which Defect or Breach, as the case may be, materially and adversely affects the value of such Mortgage Loan, the value of the related Mortgaged Property or the interests of the Trustee or any Certificateholder therein or causes such Mortgage Loan to be other than a Qualified Mortgage.

 

Maturity Date”: With respect to any Mortgage Loan, Whole Loan or Companion Loan, as of any date of determination, the date on which the last payment of principal is due and payable under the related Mortgage Note, after taking into account all Principal Prepayments received prior to such date of determination, but without giving effect to (i) any acceleration of the principal of such Mortgage Loan, Whole Loan or Companion Loan by reason of default thereunder or (ii) any Grace Period permitted by the related Mortgage Note.

 

Mediation Services Provider”: As defined in Section 2.03(m)(i).

 

Merger Notice”: As defined in Section 6.03(b).

 

Modification Fees”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Companion 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 and/or related Serviced Companion Loan documents (as evidenced by a signed writing) agreed to by the Master Servicer or the Special Servicer, as applicable (other than all assumption fees, assumption application fees, consent fees, defeasance fees, Special Servicing Fees, Liquidation Fees or Workout Fees).

 

Moody’s”: Moody’s Investors Service, Inc., and its successors in interest. If neither Moody’s nor any successor remains in existence, “Moody’s” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, the Master Servicer, the Directing Certificateholder and the Special Servicer, and specific ratings of Moody’s herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

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Morningstar”: Morningstar Credit Ratings, LLC, and its successors in interest. If neither Morningstar nor any successor remains in existence, “Morningstar” 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 Master Servicer, the Directing Certificateholder and the Special Servicer, and specific ratings of Morningstar herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

Mortgage”: With respect to any Mortgage Loan or Companion Loan, the mortgage(s), deed(s) of trust or other instrument(s) securing the related Mortgage Note and creating a first mortgage lien on the fee and/or leasehold interest in the related Mortgaged Property.

 

Mortgage File”: With respect to each Mortgage Loan and any related Companion Loan(s), but subject to Section 2.01, collectively the following documents:

 

(i)                the original Mortgage Note, endorsed on its face or by allonge attached to the Mortgage Note, without recourse, to the order of “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered Holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1” or in blank and further showing a complete, unbroken chain of endorsement from the originator (or, if the original Mortgage Note has been lost, an affidavit to such effect from the applicable Mortgage Loan Seller or another prior holder, together with a copy of the Mortgage Note and an indemnity properly assigned and endorsed to the Trustee);

 

(ii)                (A) the original of the Mortgage or a certified copy thereof from the applicable recording office (or a copy thereof from the applicable recording office if (to the knowledge of the applicable Mortgage Loan Seller or its third-party vendor, as certified by such party to the Custodian in writing) it is not the practice of such office to provide certified copies, provided that the Custodian may conclusively rely on any such certification by such Mortgage Loan Seller or third-party vendor and shall not be required to investigate whether any recording office cannot provide a certified copy) and, (B) if applicable, the originals or certified copies thereof from the applicable recording office (or copies thereof from the applicable recording office if (to the knowledge of the applicable Mortgage Loan Seller or its third-party vendor, as certified by such party to the Custodian in writing) it is not the practice of such office to provide certified copies, provided that the Custodian may conclusively rely on any such certification by such Mortgage Loan Seller or third-party vendor and shall not be required to investigate whether any recording office cannot provide a certified copy) of any intervening assignments thereof showing a complete chain of assignment from the Originator of the Mortgage Loan or Serviced Whole Loan to the most recent assignee of record thereof prior to the Trustee, if any, in each case with evidence of recording indicated thereon;

 

(iii)              an original Assignment of Mortgage in blank or in favor of “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered holders

 

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of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1” or in blank and, in the case of any Serviced Whole Loan, “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1 and the holder(s) of the related Companion Loan(s), as their interests may appear” and (subject to the completion of certain missing recording information and, if applicable, the assignee’s name) in recordable form (or, if the related Mortgage Loan Seller is responsible for the recordation of that assignment, a copy of such assignment certified to be the copy of such assignment submitted or to be submitted for recording);

 

(iv)              the original or a copy of any related Assignment of Leases and of any intervening assignments (if such item is a document separate from the Mortgage), with evidence of recording indicated thereon or certified to have been submitted for recording;

 

(v)               an original Assignment of any related Assignment of Leases (if such item is a document separate from the Mortgage) in blank or in favor of “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1” or in blank and, in the case of any Serviced Whole Loan, “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1 and the holder(s) of the related Companion Loan(s), as their interests may appear” and (subject to the completion of certain missing recording information and, if applicable, the assignee’s name) in recordable form (or, if the related Mortgage Loan Seller is responsible for the recordation of that assignment, a copy of such assignment certified to be the copy of such assignment submitted or to be submitted for recording);

 

(vi)              the original assignment of all unrecorded documents relating to the Mortgage Loan in favor of “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered Holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1” or in blank or, in the case of a Serviced Whole Loan, in favor of “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1 and the holder(s) of the related Companion Loan(s), as their interests may appear”, if not already assigned pursuant to items (iii) or (v) above;

 

(vii)             originals or copies of all modification, consolidation, assumption, written assurance and substitution agreements in those instances in which the terms or provisions of the Mortgage or Mortgage Note have been modified or the Mortgage Loan has been assumed or consolidated;

 

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(viii)            the original (which may be in the form of an electronically issued title policy) or a copy of the policy or certificate of lender’s title insurance of such Mortgage Loan, or, if such policy has not been issued or located, an irrevocable, binding commitment (which may be a marked version of the policy that has been executed by an authorized representative of the title company or an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title Insurance Policy;

 

(ix)               any filed copies (bearing evidence of filing) or evidence of filing of any UCC Financing Statements, related amendments and continuation statements in the possession of the applicable Mortgage Loan Seller;

 

(x)                an original assignment in favor of “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered Holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1” and, in the case of any Serviced Whole Loan, “Wells Fargo Bank, National Association, as Trustee, on behalf of the registered holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1 and the holder of the related Companion Loan(s), as their interests may appear” of any financing statement executed and filed in favor of the applicable Mortgage Loan Seller in the relevant jurisdiction (or, if the related Mortgage Loan Seller is responsible for the filing of that assignment, a copy thereof certified to be the copy of such assignment submitted or to be submitted for recording);

 

(xi)               the original or a copy of any intercreditor agreement relating to existing debt of the borrower, including any Intercreditor Agreement relating to a Serviced Whole Loan;

 

(xii)              the original or copies of any Loan Agreement, escrow agreement, security agreement or letter of credit relating to such Mortgage Loan or a related Serviced Whole Loan;

 

(xiii)             the original or a copy of any ground lease, ground lessor estoppel, environmental Insurance Policy, environmental indemnity or guaranty relating to such Mortgage Loan or a related Serviced Whole Loan;

 

(xiv)             the original or a copy of any property management agreement relating to such Mortgage Loan or a related Serviced Whole Loan;

 

(xv)              the original or a copy of any franchise agreements and comfort letters or similar agreements relating to such Mortgage Loan or a related Serviced Whole Loan and, with respect to any franchise agreement, comfort letter or similar agreement, any assignment of such agreements or any notice to the franchisor of the transfer of such Mortgage Loan or a related Serviced Whole Loan and a request for confirmation that the Trust is a beneficiary of such comfort letter or other

 

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agreement, or for the issuance of a new comfort letter in favor of the Trust, as the case may be;

 

(xvi)             the original or a copy of any lock-box or cash management agreement relating to a Mortgage Loan or a Serviced Whole Loan;

 

(xvii)            in the case of the Westchester Loan REMIC, a copy of the Westchester Loan REMIC Declaration; and

 

(xviii)           the original or a copy of any related mezzanine Intercreditor Agreement;

 

provided, however, that (a) whenever the term “Mortgage File” is used to refer to documents held by the Custodian, such term shall not be deemed to include such documents and instruments required to be included therein unless they are actually received by the Custodian, (b) if there exists with respect to any Crossed Mortgage Loan Group only one original or certified copy of any document referred to in the definition of “Mortgage File” covering all of the Mortgage Loans in such Crossed Mortgage Loan Group, then the inclusion of such original or certified copy in the Mortgage File for any of the Mortgage Loans constituting such Crossed Mortgage Loan Group shall be deemed the inclusion of such original or certified copy in the Mortgage File for each such Mortgage Loan, (c) to the extent that this Agreement refers to a “Mortgage File” for a Companion Loan, such “Mortgage File” shall be construed to mean the Mortgage File for the related Mortgage Loan (except that references to the Mortgage Note for a Companion Loan otherwise described above shall be construed to instead refer to a photocopy of such Mortgage Note), (d) with respect to any Mortgage Loan that has a Serviced Companion Loan, the execution and/or recordation of any Assignment of Mortgage, any separate assignment of Assignment of Leases and any assignment of any UCC Financing Statement in the name of the Trustee shall not be construed to limit the beneficial interest of the related Companion Holder(s) in such instrument and the benefits intended to be provided to them by such instrument, it being acknowledged that (i) the Trustee shall hold such record title for the benefit of the Trust as the holder of the related Mortgage Loan and the related Companion Holder(s) collectively and (ii) any efforts undertaken by the Trustee, the Master Servicer, or the Special Servicer on its behalf to enforce or obtain the benefits of such instrument shall be construed to be so undertaken by the Trustee, the Master Servicer or the Special Servicer for the benefit of the Trust as the holder of the applicable Mortgage Loan and the related Companion Holder(s) collectively, (e) in connection with any Non-Serviced Mortgage Loan, the preceding document delivery requirements will be met by the delivery by the applicable Mortgage Loan Seller of copies of the documents specified above (other than the Mortgage Note and intervening endorsements evidencing such Mortgage Loan, with respect to which the original shall be required) including a copy of the Mortgage securing the applicable Mortgage Loan, and any assignments or other transfer documents referred to in clauses (iii), (iv), (v), (vi), (ix) and (x) above as being in favor of the Trustee shall instead be in favor of the applicable Non-Serviced Trustee and need only be in such form as was delivered to the applicable Non-Serviced Trustee or a custodian on its behalf, (f) in connection with any Non-Serviced Mortgage Loan, any and all document delivery requirements with respect to the related Mortgage File (or any portion thereof) set forth herein or in the related Mortgage Loan Purchase Agreement will also be satisfied by the delivery, in compliance with the terms of the related Non-Serviced PSA, by the applicable Mortgage Loan Seller of the documents specified above (other than the Mortgage Note and

 

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intervening endorsements evidencing such Mortgage Loan) to the custodian under the related Non-Serviced PSA (in such form as was delivered to the custodian under the related Non-Serviced PSA) and (g) in connection with any Servicing Shift Mortgage Loan, the foregoing documents shall be delivered to the Custodian by the applicable Mortgage Loan Seller on or prior to the Closing Date and such documents (other than the documents described in clause (i) above) shall be transferred to the custodian pursuant to Section 2.01(j).

 

Notwithstanding anything to the contrary contained herein, with respect to a Joint Mortgage Loan, delivery of the Mortgage File (other than with respect to the original Mortgage Note, related allonge and assignments held by or from the related Mortgage Loan Seller) by either of the applicable Mortgage Loan Sellers shall satisfy the delivery requirements for both of the applicable Mortgage Loan Sellers.

 

Mortgage Loan”: Each of the mortgage loans transferred and assigned to the Trustee pursuant to Section 2.01 and to be held by the Trust. As used herein, the term “Mortgage Loan” includes the related Mortgage Note, Mortgage and other documents contained in the related Mortgage File and any related agreements. The term “Mortgage Loan” shall, as of any date of determination, include any Qualified Substitute Mortgage Loan that has replaced a Mortgage Loan pursuant to Section 2.03 and exclude any such replaced Mortgage Loan. For the avoidance of doubt, no Loan Seller Defeasance Rights and Obligations will be part of a “Mortgage Loan” or an asset of the Trust.

 

Mortgage Loan Purchase Agreement”: With respect to each Mortgage Loan Seller, the agreement between the Depositor and such Mortgage Loan Seller, relating to the transfer of all of such Mortgage Loan Seller’s right, title and interest in and to the related Mortgage Loans.

 

Mortgage Loan Schedule”: The list of Mortgage Loans transferred on the Closing Date to the Trustee as part of the Trust Fund, attached as Exhibit B, which list sets forth the following information with respect to each Mortgage Loan so transferred:

 

(i)                the loan identification number (as specified in Annex A-1 to the Prospectus);

 

(ii)               Mortgage Loan or Mortgaged Property name;

 

(iii)              the street address (including city, state and zip code) of the related Mortgaged Property;

 

(iv)              the Cut-off Date Balance;

 

(v)               the Mortgage Rate in effect at the Cut-off Date;

 

(vi)              the Maturity Date and, if applicable, the Anticipated Repayment Date;

 

(vii)             the applicable Servicing Fee Rate, Master Servicing Fee Rate, Primary Servicing Fee Rate and Subservicing Fee Rate;

 

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(viii)            the Mortgage Loan Seller;

 

(ix)               identifying which Mortgage Loans, if any, with which it forms a Crossed Collateralized Group;

 

(x)                whether the Mortgage Loan is an ARD Loan;

 

(xi)               the ARD Loan final Maturity Date, if applicable

 

(xii)              the Revised Rate, if applicable;

 

(xiii)             whether the Mortgage Loan is part of a Whole Loan; and

 

(xiv)             whether the related Mortgaged Property is in a flood zone and, if applicable, the flood zone code thereof.

 

Such list may be in the form of more than one list, collectively setting forth all of the information required.

 

Mortgage Loan Seller”: Each of (i) 3650 REIT, (ii) CREFI and (iii) GACC.

 

Mortgage Loan Seller Percentage Interest”: With respect to a Joint Mortgage Loan and each applicable Mortgage Loan Seller with respect thereto, a fraction, expressed as a percentage, the numerator of which is equal to the aggregate Cut-off Date principal balance of the promissory notes contributed by such Mortgage Loan Seller to this securitization, and the denominator of which is equal to the Cut-off Date Balance of such Joint Mortgage Loan.

 

Mortgage Note”: The original executed note(s) evidencing the indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, as the case may be, together with any rider, addendum or amendment thereto.

 

Mortgage Rate”: With respect to (i) any Mortgage Loan or related Serviced Pari Passu Companion Loan (or, in either case, any successor REO Loan) on or prior to its Maturity Date, the annual rate at which interest is scheduled (in the absence of a default and, if applicable, any REO Acquisition) to accrue on such Mortgage Loan or related Serviced Pari Passu Companion Loan from time to time in accordance with the related Mortgage Note and applicable law without giving effect to any default rate or Revised Rate; or (ii) any Mortgage Loan or related Serviced Pari Passu Companion Loan (or, in either case, any successor REO Loan) after its Maturity Date, the annual rate described in clause (i) above determined without regard to the passage of such Maturity Date and, if applicable, any REO Acquisition. For the avoidance of doubt, the Mortgage Rate of any ARD Loan shall not be construed to include the related Excess Rate.

 

Mortgaged Property”: The real property subject to the lien of a Mortgage.

 

Mortgagor”: The obligor or obligors on a Mortgage Note, including without limitation, any Person that has acquired the related Mortgaged Property and assumed the obligations of the original obligor under the Mortgage Note and including in connection with any Mortgage Loan that utilizes an indemnity deed of trust structure, the borrower and the Mortgaged

 

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Property owner/payment guarantor/mortgagor individually and collectively, as the context may require.

 

Net Investment Earnings”: With respect to the Collection Accounts, the Servicing Accounts or the REO Account or Companion Distribution Account for any period from any Distribution Date to the immediately succeeding P&I Advance Date, the amount, if any, by which the aggregate of all interest and other income realized during such period on funds relating to the Trust Fund held in such account, exceeds the aggregate of all losses, if any, incurred during such period in connection with the investment of such funds in accordance with Section 3.06.

 

Net Investment Loss”: With respect to the Collection Account, the Servicing Accounts or the REO Account or Companion Distribution Account for any period from any Distribution Date to the immediately succeeding P&I Advance Date, the amount by which the aggregate of all losses, if any, incurred during such period in connection with the investment of funds relating to the Trust held in such account in accordance with Section 3.06, exceeds the aggregate of all interest and other income realized during such period on such funds.

 

Net Mortgage Rate”: With respect to each Mortgage Loan as of any date of determination, a rate per annum equal to the related Mortgage Rate then in effect (without regard to any increase in the interest rate of any ARD Loan after its respective Anticipated Repayment Date), minus the related Administrative Cost Rate; provided, however, that for purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any Mortgage Loan will be determined without regard to any modification, waiver or amendment of the terms of the related Mortgage Loan, whether agreed to by the Master Servicer, the Special Servicer, a Non-Serviced Master Servicer or a Non-Serviced Special Servicer or resulting from a bankruptcy, insolvency or similar proceeding involving the Mortgagor or otherwise; provided, further, that for any Mortgage Loan that does not accrue interest on the basis of a 360-day year consisting of twelve 30-day months, then, solely for purposes of calculating Pass-Through Rates and the WAC Rates on the Regular Certificates, the Net Mortgage Rate of such Mortgage Loan for any one-month period preceding a related Due Date will be the annualized rate at which interest would have to accrue in respect of such Mortgage Loan on the basis of a 360-day year consisting of twelve 30-day months in order to produce the aggregate amount of interest actually accrued in respect of such Mortgage Loan during such one-month period at the related Net Mortgage Rate; provided, further, that, with respect to each Actual/360 Mortgage Loan, the Net Mortgage Rate for the one-month period (A) preceding the Due Dates that occur in January and February in any year which is not a leap year or preceding the Due Date that occurs in February in any year which is a leap year (in any event, unless the related Distribution Date is the final Distribution Date), will be determined exclusive of any Withheld Amounts in respect of such Actual/360 Mortgage Loan and (B) preceding the Due Date in March (or February, if the related Distribution Date is the final Distribution Date), will be determined inclusive of the Withheld Amounts in respect of such Actual/360 Mortgage Loan for the immediately preceding January and/or February, if applicable. With respect to any REO Mortgage Loan, the Net Mortgage Rate shall be calculated as described above, determined as if the predecessor Mortgage Loan had remained outstanding. With respect to The Westchester Mortgage Loan, the computations set forth above shall be made with respect to the Westchester Loan REMIC Regular Interest instead of the related Mortgage Loan.

 

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Net Operating Income”: With respect to any Mortgaged Property, for any Mortgagor’s fiscal year end, Net Operating Income will be calculated in accordance with the standard definition of “Net Operating Income” approved from time to time endorsed and put forth by the CREFC®.

 

New Lease”: Any lease of REO 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 5.02(c).

 

Nonrecoverable Advance”: Any Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance.

 

Nonrecoverable P&I Advance”: Any P&I Advance previously made or proposed to be made in respect of a Mortgage Loan (including any Non-Serviced Mortgage Loan) or REO Mortgage Loan, which the Master Servicer, in accordance with the Servicing Standard, or the Trustee, in its good faith business judgment, as applicable, determines would not be ultimately recoverable, together with any accrued and unpaid interest thereon at the Reimbursement Rate, from Late Collections or any other recovery on or in respect of such Mortgage Loan or REO Mortgage Loan; provided, however, that the Special Servicer may, at its option (other than with respect to an Excluded Special Servicer Loan), make a determination in accordance with the Servicing Standard, that any P&I Advance previously made or proposed to be made is a Nonrecoverable P&I Advance and shall deliver to the Master Servicer (and with respect to a Serviced Mortgage Loan, to any Other Servicer), the Certificate Administrator, the Trustee, the Operating Advisor and the 17g-5 Information Provider notice of such determination. Any such determination by the Master Servicer, the Special Servicer or the Trustee may be conclusively relied upon by, and shall be binding upon, the Master Servicer and the Trustee, provided, however, that the Special Servicer shall not have such obligation to make an affirmative determination that any P&I Advance is or would be recoverable and in the absence of a determination by the Special Servicer that such P&I Advance is or would be a Nonrecoverable P&I Advance, such decision shall remain with the Master Servicer or Trustee, as applicable. If the Special Servicer makes a determination that only a portion, and not all, of any previously made or proposed P&I Advance is a Nonrecoverable P&I Advance, the Master Servicer and the Trustee may make its own subsequent determination that any remaining portion of any such previously made or proposed P&I Advance is a Nonrecoverable P&I Advance.

 

With respect to any Non-Serviced Whole Loan, if any Non-Serviced Master Servicer or Non-Serviced Special Servicer, as applicable, in connection with a securitization of the related Non-Serviced Companion Loan determines that a principal and interest advance with respect to the related Non-Serviced Companion Loan, if made, would be a “nonrecoverable P&I advance”, such determination shall not be binding on the Master Servicer and the Trustee as it relates to any proposed P&I Advance with respect to the related Non-Serviced Mortgage Loan. Similarly, with respect to the related Non-Serviced Mortgage Loan, if the Master Servicer, the Special Servicer or the Trustee, as applicable, determines that any P&I Advance with respect to a related Non-Serviced Mortgage Loan, if made, would be a Nonrecoverable P&I Advance, such determination shall not be binding on the related Non-Serviced Master Servicer and related Non-

 

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Serviced Trustee as it relates to any proposed P&I Advance with respect to the related Non-Serviced Companion Loan (unless the related Non-Serviced PSA provides otherwise).

 

In making such recoverability determination, the Master Servicer, the Special Servicer or the Trustee, as applicable, will be entitled (a) to consider (among other things) (i) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Companion Loan as it may have been modified and (ii) the related Mortgaged Properties in their “as-is” or then-current conditions and occupancies, as modified by such party’s assumptions (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer or in its good faith business 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 such Mortgaged Properties, (b) to estimate and consider (among other things) future expenses, (c) to estimate and consider (consistent with the Servicing Standard in the case of the Master Servicer and the Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) the timing of recoveries, and (d) to give due regard to the existence of any Nonrecoverable Advances which, at the time of such consideration, the recovery of which are being deferred or delayed by the Master Servicer or the Trustee because there is insufficient principal available for such recovery, in light of the fact that related proceeds are a source of recovery not only for the Advance under consideration but also a potential source of recovery for such delayed or deferred Advance.

 

In addition, any Person, in considering whether a P&I Advance is a Nonrecoverable Advance, will be entitled to give due regard to the existence of any outstanding Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans, the reimbursement of which, at the time of such consideration, is being deferred or delayed by the Master Servicer or the Trustee because there is insufficient principal available for such reimbursement, in light of the fact that proceeds on the related Mortgage Loan are a source of reimbursement not only for the P&I Advance under consideration, but also as a potential source of reimbursement of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may be being deferred or delayed. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and, consistent with the Servicing Standard, in the case of the Master Servicer or in its good faith business judgment in the case of the Trustee (solely in its capacity as Trustee), may obtain at the expense of the Trust any reasonably required analysis, Appraisals or market value estimates or other information for making a recoverability determination (and, upon the reasonable request by the Trustee, Master Servicer or Special Servicer, as applicable, the Master Servicer and the Special Servicer shall deliver any relevant Appraisals or market value estimates in its possession to the requesting party for such purpose). Absent bad faith, the Master Servicer’s, the Special Servicer’s or the Trustee’s determination as to the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders.

 

The determination by the Master Servicer, the Special Servicer or the Trustee, as applicable, that the Master Servicer or the Trustee, as applicable, has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any updated or changed recoverability determination, shall be evidenced by an Officer’s Certificate delivered by either the Special Servicer or the Master Servicer to the other

 

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and to the Trustee, the Certificate Administrator and the Directing Certificateholder (but in the case of the Directing Certificateholder, only if no Consultation Termination Event is continuing and other than with respect to an Excluded Loan) (and, in the case of a Serviced Mortgage Loan or Non-Serviced Mortgage Loan, any Other Servicer or Non-Serviced Master Servicer, as applicable), the Operating Advisor (but only in the case of the Special Servicer), the Depositor, or by the Trustee to the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor (and, in the case of a Serviced Mortgage Loan or Non-Serviced Mortgage Loan, any Other Servicer or Non-Serviced Master Servicer, as applicable) and the Certificate Administrator. The Officer’s Certificate shall set forth such determination of nonrecoverability and the considerations of the Master Servicer, the Special Servicer or the Trustee, as applicable, forming the basis of such determination (which shall be accompanied by, to the extent available, income and expense statements, rent rolls, occupancy status, property inspections and any other information used by the Master Servicer, the Special Servicer or the Trustee, as applicable, to make such determination and shall include any existing Appraisal of the related Mortgage Loan, or the related Mortgaged Property).

 

In the case of a Crossed Underlying Loan (if any), such recoverability determination shall take into account the cross-collateralization of the related Crossed Mortgage Loan Group.

 

Nonrecoverable Servicing Advance”: Any Servicing Advance previously made or proposed to be made in respect of a Mortgage Loan (other than a Non-Serviced Mortgage Loan), Whole Loan or REO Property which the Master Servicer, the Special Servicer, in each case in accordance with the Servicing Standard, or the Trustee, in its good faith business judgment, as applicable, determines would not be ultimately recoverable, together with any accrued and unpaid interest thereon, at the Reimbursement Rate, from Late Collections or any other recovery on or in respect of such Mortgage Loan, Whole Loan or REO Property. In making such recoverability determination, such Person will be entitled (a) to consider (among other things) (i) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Companion Loan, as applicable, as it may have been modified and (ii) the related Mortgaged Properties in their “as-is” or then-current conditions and occupancies, as modified by such party’s assumptions (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, (b) to estimate and consider (among other things) future expenses, (c) to estimate and consider (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) the timing of recoveries and (d) give due regard to the existence of any Nonrecoverable Advances that, at the time of such consideration, the recovery of which are being deferred or delayed by the Master Servicer or the Trustee because there is insufficient principal available for such reimbursement, in light of the fact that Related Proceeds are a source of recovery not only for the Advance under consideration but also a potential source of recovery for such delayed or deferred Advance. In addition, any Person, in considering whether a Servicing Advance is a Nonrecoverable Servicing Advance, will be entitled to give due regard to the existence of any Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts with respect to other Mortgage Loans, the reimbursement of which, at the time of such consideration, is being deferred or delayed by the Master Servicer, in light of the fact that proceeds on the related Mortgage Loan

 

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are a source of recovery not only for the Servicing Advance under consideration, but also as a potential source of recovery of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may be being deferred or delayed. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and, consistent with the Servicing Standard, in the case of the Master Servicer or in its good faith business judgment in the case of the Trustee (solely in its capacity as Trustee), may obtain at the expense of the Trust any reasonably required analysis, Appraisals or market value estimates or other information for making a recoverability determination (and, upon the reasonable request by the Trustee, Master Servicer or Special Servicer, as applicable, the Master Servicer and the Special Servicer shall deliver any relevant Appraisals or market value estimates in its possession to the requesting party for such purpose). Absent bad faith, the Master Servicer’s, Special Servicer’s or the Trustee’s determination as to the recoverability of any Servicing Advance shall be conclusive and binding on the Certificateholders. The determination by the Master Servicer, the Special Servicer or the Trustee, as the case may be, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, or any updated or changed recoverability determination, shall be evidenced by an Officer’s Certificate delivered by either of the Special Servicer or the Master Servicer to the other and to the Trustee, the Certificate Administrator, the Directing Certificateholder (but in the case of the Directing Certificateholder, only if no Consultation Termination Event is continuing and other than with respect to an Excluded Loan) (and in the case of a Serviced Mortgage Loan or Non-Serviced Mortgage Loan, any Other Servicer or Non-Serviced Master Servicer, as applicable), the Operating Advisor (but only in the case of the Special Servicer) and the Depositor, or by the Trustee to the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor and the Certificate Administrator (and in the case of a Serviced Mortgage Loan or Non-Serviced Mortgage Loan, any Other Servicer or Non-Serviced Master Servicer, as applicable); provided, however, that the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard, that any Servicing Advance previously made or proposed to be made is a Nonrecoverable Servicing Advance and shall deliver to the Master Servicer (and with respect to a Serviced Mortgage Loan, to any Other Servicer), the Trustee, the Operating Advisor, the Certificate Administrator and the 17g-5 Information Provider notice of such determination. Any such determination by the Master Servicer, the Special Servicer or the Trustee may be conclusively relied upon by, and shall be binding upon, the Master Servicer and the Trustee, provided, however, that the Special Servicer shall not have such obligation to make an affirmative determination that any Servicing Advance is or would be recoverable and in the absence of a determination by the Special Servicer that such Servicing Advance is or would be a Nonrecoverable Servicing Advance, such decision shall remain with the Master Servicer or the Trustee, as applicable. If the Special Servicer makes a determination that only a portion, and not all, of any previously made or proposed Servicing Advance is a Nonrecoverable Servicing Advance, the Master Servicer and the Trustee shall each have the right to make its own subsequent determination that any remaining portion of any such previously made or proposed Servicing Advance is a Nonrecoverable Servicing Advance. The Officer’s Certificate shall set forth such determination of nonrecoverability and the considerations of the Master Servicer, the Special Servicer or the Trustee, as applicable, forming the basis of such determination (which shall be accompanied by, to the extent available, related income and expense statements, rent rolls, occupancy status and property inspections, and shall include any existing Appraisal with respect to the related Mortgage Loan or Serviced Companion

 

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Loan, as applicable, or related Mortgaged Property). The Special Servicer shall promptly furnish any party required to make Servicing Advances hereunder with any information in its possession regarding the Specially Serviced Loans and REO Properties as such party required to make Servicing Advances may reasonably request for purposes of making recoverability determinations. Notwithstanding anything herein to the contrary, if the Special Servicer requests that the Master Servicer make a Servicing Advance, the Master Servicer may conclusively rely on such request as evidence that such advance is not a Nonrecoverable Servicing 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 Servicing Advances other than emergency advances (although such request may relate to more than one Servicing Advance). In the case of a Crossed Underlying Loan (if any), such recoverability determination shall take into account the cross-collateralization of the related Crossed Mortgage Loan Group. The determination as to the recoverability of any servicing advance previously made or proposed to be made in respect of a Non-Serviced Whole Loan shall be made by the related Non-Serviced Master Servicer, Non-Serviced Special Servicer or Non-Serviced Trustee, as the case may be, pursuant to the Non-Serviced PSA.

 

Non-Reduced Certificates”: As of any date of determination, any Class of Principal Balance Certificates then-outstanding for which, in any case (a) (1) the initial Certificate Balance of such Class of Certificates minus (2) the sum (without duplication) of (x) any payments of principal (whether as Principal Prepayments or otherwise) previously distributed to the Holders of such Class of Certificates, (y) any Appraisal Reduction Amounts allocated to such Class of Certificates as of the date of determination and (z) any Realized Losses previously allocated to such Class of Certificates, is equal to or greater than (b) 25% of the remainder of (i) the initial Certificate Balance of such Class of Certificates less (ii) any payments of principal (whether as Principal Prepayments or otherwise) previously distributed to the Holders of such Class of Certificates.

 

Non-Registered Certificate”: Unless and until registered under the Securities Act, any Class X-D, Class D, Class E, Class F-RR, Class G-RR, Class J-RR, Class NR-RR, Class Z or Class R Certificate.

 

Non-Serviced Asset Representations Reviewer”: The “Asset Representations Reviewer” under a Non-Serviced PSA.

 

Non-Serviced Certificate Administrator”: The “Certificate Administrator” under a Non-Serviced PSA.

 

Non-Serviced Companion Loan”: Each of the Companion Loans related to a Non-Serviced Whole Loan.

 

Non-Serviced Depositor”: The “Depositor” under a Non-Serviced PSA.

 

Non-Serviced Gain-on-Sale Proceeds”: Any “gain-on-sale proceeds” received in respect of a Non-Serviced Mortgage Loan pursuant to the related Non-Serviced PSA.

 

Non-Serviced Intercreditor Agreement”: Each Intercreditor Agreement relating to a Non-Serviced Whole Loan.

 

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Non-Serviced Master Servicer”: The “Master Servicer” under a Non-Serviced PSA.

 

Non-Serviced Mortgage Loan”: Each Mortgage Loan related to a Non-Serviced Whole Loan.

 

Non-Serviced Mortgaged Property”: The Mortgaged Property that secures a Non-Serviced Whole Loan.

 

Non-Serviced Operating Advisor”: The “Operating Advisor” under a Non-Serviced PSA.

 

Non-Serviced Paying Agent”: The “Paying Agent” under a Non-Serviced PSA.

 

Non-Serviced Primary Servicing Fee Rate”: The primary servicing fee rate with respect to a Non-Serviced Mortgage Loan under a Non-Serviced PSA, which, with respect to each Non-Serviced Mortgage Loan, is the rate set forth on the Mortgage Loan Schedule under the heading “Subservicing Fee Rate”.

 

Non-Serviced PSA”: With respect to:

 

(i)                each of the Whole Loans identified as “Non-Serviced” under the column titled “Type” in the “Whole Loan” chart in the Preliminary Statement, the related pooling and servicing agreement or trust and servicing agreement identified under the column titled “Non-Serviced PSA”; and

 

(ii)                any Servicing Shift Whole Loan, after the applicable Servicing Shift Securitization Date, the related pooling and servicing agreement governing the servicing of the Servicing Shift Whole Loan.

 

Non-Serviced Special Servicer”: The “Special Servicer” under a Non-Serviced PSA.

 

Non-Serviced Trust”: The “Trust” formed under a Non-Serviced PSA.

 

Non-Serviced Trustee”: The “Trustee” under a Non-Serviced PSA.

 

Non-Serviced Whole Loan”: Each of (i) the Whole Loans identified as “Non-Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (ii) on and after the related Servicing Shift Securitization Date, the Whole Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement.

 

Non-Serviced Whole Loan Controlling Holder”: The “directing holder” or similarly defined party under a Non-Serviced PSA.

 

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Non-Specially Serviced Loan”: Any Mortgage Loan (other than a Non-Serviced Mortgage Loan, except in the case of Section 2.03(f) and Section 2.03(k) through Section 2.03(o)) or Serviced Companion Loan that is not a Specially Serviced Loan.

 

Non-U.S. Beneficial Ownership Certification”: As defined in Section 5.03(f).

 

Non-U.S. Tax Person”: Any person other than a U.S. Tax Person.

 

Non-Waiving Successor”: As defined in Section 3.23(l).

 

Notional Amount”: In the case of the Class X-A Certificates, the Class X-A Notional Amount, in the case of the Class X-B Certificates, the Class X-B Notional Amount and in the case of the Class X-D Certificates, the Class X-D Notional Amount.

 

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

 

NRSRO Certification”: A certification (a) substantially in the form of Exhibit P-2 executed by a NRSRO 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 such NRSRO is a Rating Agency under this Agreement or that such NRSRO has provided the Depositor with the appropriate certifications pursuant to paragraph (e) of Rule 17g-5 of the Exchange Act, that such NRSRO has access to the 17g-5 Information Provider’s website and that such NRSRO will keep such information confidential, except to the extent such information has been made available to the general public. Each NRSRO shall be deemed to recertify to the foregoing each time it accesses the 17g-5 Information Provider’s Website.

 

OCC”: Office of the Comptroller of the Currency.

 

Offered Certificates”: The Class A-1, Class A-3, Class A-4, Class A-5, Class A-SB, Class A-S, Class B, Class C, Class X-A and Class X-B Certificates.

 

Officer’s Certificate”: A certificate signed by a Servicing Officer of the Master Servicer or the Special Servicer or any Additional Servicer, as the case may be, or a Responsible Officer of the Trustee or Certificate Administrator, as the case may be.

 

Offshore Transaction”: Any “offshore transaction” as defined in Rule 902(h) of Regulation S.

 

One SoHo Square Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of July 30, 2021, by and between the holders of the respective promissory notes evidencing the One SoHo Square Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

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.

 

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

 

Operating Advisor Consultation Event”: The event that occurs when either (i) the HRR Certificates have an aggregate Certificate Balance (as notionally reduced by any Cumulative Appraisal Reduction Amounts allocable to such Class in accordance with Section 4.05(a) of this Agreement) equal to or less than 25% of the initial aggregate Certificate Balance of the HRR Certificates, or (ii) a Control Termination Event is continuing (or a Control Termination Event would be continuing if not for the last proviso in the definition thereof).

 

Operating Advisor Consulting Fee”: A fee for each Major Decision on which the Operating Advisor has consulting obligations and performed its duties with respect to such Major Decision equal to $10,000 or such lesser amount as the Master Servicer or the Special Servicer, as applicable, collects from the related Mortgagor with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan or Servicing Shift Mortgage Loan), payable pursuant to Section 3.05; provided, however, that, subject to Section 3.26(h), no such fee shall be payable unless specifically paid by the related Mortgagor as a separately identifiable fee; provided, however, that to the extent such fee is incurred after the outstanding Certificate Balances of the Control Eligible Certificates have been reduced to zero as a result of the allocation of Realized Losses to such Certificates, such fee shall be payable in full to the Operating Advisor as an expense of the Trust; provided, further, that the Operating Advisor may in its sole discretion reduce the Operating Advisor Consulting Fee with respect to any Major Decision; provided, further, that the Master Servicer or the Special Servicer, as applicable, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the related Mortgagor if it determines that such full or partial waiver is in accordance with the Servicing Standard (provided that the Master 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 each Mortgage Loan and any REO Mortgage Loan, the fee payable to the Operating Advisor pursuant to Section 3.26(h).

 

Operating Advisor Fee Rate”: With respect to each Interest Accrual Period related to any applicable Distribution Date, a per annum rate of 0.00183% with respect to the Stated Principal Balance of the Mortgage Loans and any REO Mortgage Loans. If the Operating Advisor has resigned pursuant to the second paragraph of Section 3.26(m) or has been terminated pursuant to Section 3.26(i) and Section 3.26(j) and no replacement has been appointed, the Operating Advisor Fee Rate shall be 0.0%.

 

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 and, with respect to any Serviced Whole Loan, for the benefit of the holders of the related Companion Loan (as a collective whole as if such Certificateholders and the holders of the related Companion Loans constituted a single lender, taking into account the pari passu or

 

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subordinate nature of any such Companion Loan), and not in the best interest of nor for the benefit of 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 with any of the underlying Mortgagors, property managers, any Sponsor, any Mortgage Loan Seller, the Depositor, the Master Servicer, the Special Servicer, the Asset Representations Reviewer, the Directing Holder, any Certificateholder or any of their 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 evidencing greater than 25% of the aggregate Voting Rights; provided that with respect to any such failure that 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 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 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, is entered against the Operating Advisor, and such decree or order remains 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,

 

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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

 

(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 salaried counsel for the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor or the Asset Representations Reviewer, acceptable in form and delivered to the Trustee and the Certificate Administrator, except that any opinion of counsel relating to (a) the qualification of any Trust REMIC as a REMIC, (b) compliance with the REMIC Provisions, (c) the qualification of the Grantor Trust as a grantor trust, or (d) the resignation of the Master Servicer, the Special Servicer or the Depositor pursuant to Section 6.05, must be an opinion of counsel who is in fact Independent of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor and the Asset Representations Reviewer.

 

Original Certificate Balance”: With respect to any Class of Principal Balance Certificates, the initial aggregate principal amount thereof as of the Closing Date, in each case as specified in the Preliminary Statement.

 

Original Lower-Tier Principal Amount”: With respect to any Class of Lower-Tier Regular Interest, the initial principal amount thereof as of the Closing Date, in each case as specified in the Preliminary Statement.

 

Original Notional Amount”: With respect to the Class X-A Notional Amount, Class X-B Notional Amount and the Class X-D Notional Amount, the applicable initial Notional Amount thereof as of the Closing Date, as specified in the Preliminary Statement.

 

Other Certificate Administrator”: Any certificate administrator under an Other Pooling and Servicing Agreement.

 

Other Depositor”: Any depositor under an Other Pooling and Servicing Agreement.

 

Other Exchange Act Reporting Party”: With respect to any Other Securitization that is subject to the reporting requirements of the Exchange Act, the Other Servicer, Other Trustee, Other Certificate Administrator or Other 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, Form ABS-EE and Form 10-K with respect to such Other Securitization, as identified in writing to the parties to this Agreement; and, with respect to any Other Securitization that is not subject to the reporting requirements of the Exchange Act, the trustee, certificate administrator, master servicer, special servicer 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.

 

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Other Master Servicer”: Any master servicer under an Other Pooling and Servicing Agreement.

 

Other Pooling and Servicing Agreement”: Any trust and servicing agreement or pooling and servicing agreement that creates a trust whose assets include any Serviced Companion Loan.

 

Other Securitization”: As defined in Section 11.06.

 

Other Servicer”: Any master servicer or special servicer, as applicable, under an Other Pooling and Servicing Agreement.

 

Other Special Servicer”: The special servicer under an Other Pooling and Servicing Agreement.

 

Other Trustee”: Any trustee under an Other Pooling and Servicing Agreement.

 

Ownership Interest”: As to any Certificate, any ownership or security interest in such Certificate as the Holder thereof and any other interest therein, whether direct or indirect, legal or beneficial, as owner or as pledgee.

 

P&I Advance”: As to any Mortgage Loan or REO Mortgage Loan, any advance made by the Master Servicer or the Trustee, as applicable, pursuant to Section 4.03 or Section 7.05.

 

P&I Advance Date”: The Business Day immediately prior to each Distribution Date.

 

P&I Advance Determination Date”: With respect to any Distribution Date, the close of business on the related Determination Date.

 

Par Purchase Price” As defined in Section 3.16(a)(iii).

 

Pass-Through Rate”: Any of the Class A-1 Pass-Through Rate, the Class A-3 Pass-Through Rate, the Class A-4 Pass-Through Rate, the Class A-5 Pass-Through Rate, the Class A-SB Pass-Through Rate, the Class A-S Pass-Through Rate, the Class B Pass-Through Rate, the Class C Pass-Through Rate, the Class D Pass-Through Rate, the Class E Pass-Through Rate, the Class F-RR Pass-Through Rate, the Class G-RR Pass-Through Rate, the Class J-RR Pass-Through Rate, the Class NR-RR Pass-Through Rate, the Class X-A Pass-Through Rate, the Class X-B Pass-Through Rate and the Class X-D Pass-Through Rate.

 

Patewood Corporate Center Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of May 11, 2021, by and between the holders of the respective promissory notes evidencing the Patewood Corporate Center Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

PCAOB”: The Public Company Accounting Oversight Board.

 

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Penalty Charges”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Companion Loan (or any successor REO Loan), any amounts actually collected thereon (or, in the case of a Serviced Companion Loan (or any successor REO Loan thereto) that is part of a Serviced Whole Loan, actually collected on such Serviced Whole Loan and allocated and paid on such Serviced Companion Loan (or any successor REO Loan) in accordance with the related Intercreditor Agreement) that represent late payment charges or Default Interest, other than a Yield Maintenance Charge or any Excess Interest.

 

Percentage Interest”: As to any Certificate (other than the Class Z and Class R Certificates), the percentage interest evidenced thereby in distributions required to be made with respect to the related Class. With respect to any Certificate (other than the Class Z and Class R Certificates), the percentage interest is equal to the Denomination as of the Closing Date of such Certificate divided by the Original Certificate Balance or Original Notional Amount, as applicable, of such Class of Certificates as of the Closing Date. With respect to a Class Z Certificate or a Class R Certificate, the percentage interest is set forth on its face.

 

Performance Certification”: As defined in Section 11.06.

 

Performing Party”: As defined in Section 11.13.

 

Periodic Payment”: With respect to any Mortgage Loan and any related Companion Loans, the scheduled monthly payment of principal and/or interest (other than Excess Interest) on such Mortgage Loan or Companion Loan, including any Balloon Payment, which is payable (as the terms of the applicable Mortgage Loan or Companion Loan may be changed or modified in connection with a bankruptcy or similar proceedings involving the related Mortgagor or by reason of a modification, extension, waiver or amendment granted or agreed to pursuant to the terms hereof) by a Mortgagor from time to time under the related Mortgage Note and applicable law, without regard to any acceleration of principal of such Mortgage Loan or Companion Loan by reason of default thereunder and without regard to any Excess Interest.

 

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 Master 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 (or, insofar as there is then

 

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outstanding any class of Serviced Companion Loan Securities that are then rated by such Rating Agency, such class of securities) 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 systemwide bonds and notes, Federal Home Loan Banks’ consolidated debt obligations, Freddie Mac debt obligations, and Fannie Mae debt obligations rated at least “A-1” by S&P, if such obligations mature in sixty (60) days or less, or rated at least “AA-”, “A-1+” or “AAAm” by S&P, if such obligations mature in 365 days or less;

 

(ii)                time deposits, unsecured certificates of deposit, or bankers’ acceptances that mature in one (1) year or less after the date of issuance and are issued or held by any depository institution or trust company (including the Trustee) incorporated or organized under the laws of the United States of America or any State thereof and subject to supervision and examination by federal or state banking authorities that, in each case, satisfy the Applicable Fitch Permitted Investment Rating, the Applicable KBRA Permitted Investment Rating, the Applicable S&P Permitted Investment Rating and the Applicable Moody’s Permitted Investment Rating; or, in each case, such other rating as would not result in the downgrading, withdrawal or qualification of the then-current rating assigned by each Rating Agency to any Class of Certificates (or, insofar as there is then outstanding any class of Serviced Companion Loan Securities that is then rated by such rating agency, such class of securities) as evidenced in writing;

 

(iii)              repurchase agreements or obligations with respect to any security described in clause (i) above where such security has a remaining maturity of one year or less and where such repurchase obligation has been entered into with a depository institution or trust company (acting as principal) described in clause (ii) above;

 

(iv)              debt obligations bearing interest or sold at a discount issued by any corporation incorporated under the laws of the United States of America or any state thereof which mature in one (1) year or less from the date of acquisition that, in each case, satisfy the Applicable Fitch Permitted Investment Rating, the Applicable KBRA Permitted Investment Rating, the Applicable Moody’s Permitted Investment Rating and the Applicable S&P Permitted Investment Rating (or, in the case of any such Rating Agency, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency); provided, however, that securities issued by any particular corporation will not be Permitted Investments to the extent that investment therein will cause the then-outstanding principal amount of securities issued by such corporation and held in the accounts established hereunder to exceed 10% of the sum of the aggregate principal balance and the aggregate principal amount of all Permitted Investments in such accounts;

 

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(v)               commercial paper of any corporation incorporated under the laws of the United States or any state thereof (or of any corporation not so incorporated, provided that the commercial paper is United States Dollar denominated and amounts payable thereunder are not subject to any withholding imposed by any non-United States jurisdiction) that, in each case, satisfy the Applicable Fitch Permitted Investment Rating, the Applicable KBRA Permitted Investment Rating, the Applicable S&P Permitted Investment Rating and the Applicable Moody’s Permitted Investment Rating (or such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency relating to the Certificates and any Serviced Companion Loan Securities);

 

(vi)              money market funds (including the Federated Prime Obligation Money Market Fund, US Bank Long Term Eurodollar Sweep, the Wells Fargo Money Market Funds or the Wells Fargo Advantage Government Money Market Fund), which seek to maintain a constant net asset value per share, so long as any such fund is rated “AAAm” by S&P, at least “Aaa-mf” by Moody’s and in the highest short-term unsecured debt ratings category by each of Fitch and KBRA (or, if not rated by KBRA, an equivalent rating (or higher) by at least two (2) NRSROs (which must include S&P and may include any of the other Rating Agencies) or otherwise acceptable to such Rating Agency, in any such case, as confirmed in a Rating Agency Confirmation) relating to the Certificates and any Serviced Companion Loan Securities;

 

(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 not satisfied with respect to such demand, money market or time deposit, obligation, security or investment and Companion Loan Rating Agency Confirmations have been obtained with respect to any Serviced Companion Loan Securities; and

 

(viii)            any other demand, money market or time deposit, obligation, security or investment not listed in clauses (i) – (vi) above with respect to which a Rating Agency Confirmation has been obtained from each and every Rating Agency;

 

provided, however, that with respect to any Permitted Investment for which a rating by S&P is required as set forth above, such rating must be an unqualified rating (i.e., one with no qualifying suffix), with the exception of ratings with regulatory indicators, such as the “(sf)” subscript, and unsolicited ratings; provided, further, however, that each Permitted Investment qualifies as a “cash flow investment” pursuant to Section 860G(a)(6) of the Code, and that (a) it has a predetermined fixed dollar of principal due at maturity that cannot vary or change, (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, (c) any such investment must not be subject to liquidation prior to maturity and (d) any such investment must

 

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not be purchased at a premium over par; and provided, further, however, that no such instrument will 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 or (b) if such instrument may be redeemed at a price below the purchase price; and provided, further, however, that no amount beneficially owned by any Trust 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 Master Servicer receives an Opinion of Counsel, at its own expense, to the effect that such investment will not adversely affect the status of any Trust 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 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, title agency fees, insurance commissions or 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 any Mortgage Loan and Serviced Companion Loan (including any related REO Property) in accordance with this Agreement.

 

Permitted Transferee”: Any Person or any agent thereof 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 will not cause any Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding, (c) a Person that is a Disqualified Non-U.S. Tax 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. Tax Person or (e) a U.S. Tax 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. Tax Person.

 

Person”: Any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

PetSmart HQ Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of November 18, 2021, by and between the holders of the respective promissory notes evidencing the PetSmart HQ Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

Placement Agents”: Citigroup Global Markets Inc. and Deutsche Bank Securities Inc.

 

Plan”: As defined in Section 5.03(n).

 

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Plaza La Cienega Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of October 21, 2021, by and between the holders of the respective promissory notes evidencing the Plaza La Cienega Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

Pre-close Information”: As defined in Section 3.13(c).

 

Preliminary Dispute Resolution Election Notice”: As defined in Section 2.03(l).

 

Prepayment Assumption”: A “constant prepayment rate” of 0% used for determining the accrual of original issue discount and market discount, if any, and the amortization premium, if any, on the Certificates for federal income tax purposes; provided that it is assumed that each Mortgage Loan with an Anticipated Repayment Date prepays on such date. For the avoidance of doubt, the Prepayment Assumption will also apply to The Westchester Mortgage Loan held by the Westchester Loan REMIC and the Westchester Loan REMIC Regular Interest.

 

Prepayment Interest Excess”: For any Distribution Date and with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan that was subject to a Principal Prepayment in full or in part during the related Collection Period, which Principal Prepayment was applied to such Mortgage Loan or Serviced Whole Loan, as applicable, after the prior Due Date but on or before the Determination Date in such Collection Period, the amount of interest (net of the related Servicing Fees and any Excess Interest), to the extent collected from the related Mortgagor (without regard to any Yield Maintenance Charge actually collected), that actually accrued at a rate per annum equal to the sum of (x) the related Net Mortgage Rate for such Mortgage Loan or Serviced Whole Loan, as applicable, and (y) the Certificate Administrator/Trustee Fee Rate, the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC® Intellectual Property Royalty License Fee Rate, on the amount of such Principal Prepayment from such Due Date to, but not including, the date of such prepayment (or any later date through which interest accrues). Prepayment Interest Excesses (to the extent not offset by Prepayment Interest Shortfalls or required to be paid as Compensating Interest Payments) collected on the Mortgage Loans (other than any Non-Serviced Mortgage Loan) and any related Serviced Companion Loan, will be retained by the Master Servicer as additional servicing compensation.

 

Prepayment Interest Shortfall”: For any Distribution Date and with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan that was subject to a Principal Prepayment in full or in part during the related Collection Period, which Principal Prepayment was applied to such Mortgage Loan or Serviced Whole Loan (with such prepayment allocated between the related Mortgage Loan and Serviced Companion Loan in accordance with the related Intercreditor Agreement), as applicable, after the Determination Date in such Collection Period and prior to the following Due Date, the amount of interest (net of the related Servicing Fees and any Excess Interest), to the extent not collected from the related Mortgagor (without regard to any Yield Maintenance Charge actually collected), that would have accrued at a rate per annum equal to (x) in the case of any Mortgage Loan other than a Serviced Mortgage Loan, the sum of (i) the related Net Mortgage Rate for such Mortgage Loan and (ii) the Certificate Administrator/Trustee Fee Rate, the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC® Intellectual Property Royalty License Fee

 

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Rate and (y) in the case of any Serviced Mortgage Loan, the Mortgage Rate (net of Servicing Fees and any Excess Interest) on the amount of such Principal Prepayment during the period commencing on the date as of which such Principal Prepayment was applied to such Mortgage Loan or Serviced Whole Loan, as applicable, and ending on such following Due Date. With respect to an AB Whole Loan, any Prepayment Interest Shortfall for any Distribution Date shall be allocated first to the related Subordinate Companion Loan(s) and then pro rata to the related Mortgage Loan and any related Pari Passu Companion Loan. A Prepayment Interest Shortfall in respect of The Westchester Mortgage Loan held by the Westchester Loan REMIC shall be a Prepayment Interest Shortfall in respect of the Westchester Loan REMIC Regular Interest.

 

Primary Collateral”: With respect to any Crossed Underlying Loan, that portion of the Mortgaged Property designated as directly securing such Crossed Underlying Loan and excluding any Mortgaged Property as to which the related lien may only be foreclosed upon by exercise of the cross-collateralization provisions of such Crossed Underlying Loan.

 

Primary Servicing Fee”: The monthly fee payable by the Master Servicer solely from the Servicing Fee to each Initial Sub-Servicer, which monthly fee accrues at the rate per annum specified as such in the Sub-Servicing Agreement with such Initial Sub-Servicer.

 

Prime Rate”: The “Prime Rate” as published in the “Money Rates” section of the New York edition of The Wall Street Journal (or, if such section or publication is no longer available, such other comparable publication as determined by the Certificate Administrator in its reasonable discretion) as may be in effect from time to time, or, if the “prime rate” no longer exists, such other comparable rate (as determined by the Certificate Administrator in its reasonable discretion) as may be in effect from time to time.

 

Principal Balance Certificates”: Each of the Class A-1, Class A-3, Class A-4, Class A-5, Class A-SB, Class A-S, Class B, Class C, Class D, Class E, Class F-RR, Class G-RR, Class J-RR and Class NR-RR Certificates.

 

Principal Distribution Amount”: With respect to any Distribution Date and the Principal Balance Certificates, an amount equal to the sum of the following amounts: (a) the Principal Shortfall for such Distribution Date, (b) the Scheduled Principal Distribution Amount for such Distribution Date and (c) the Unscheduled Principal Distribution Amount for such Distribution Date; provided that the Principal Distribution Amount for any Distribution Date shall be reduced, to not less than zero, by the amount of any reimbursements of (A) Nonrecoverable Advances (including any servicing advance with respect to any Non-Serviced Mortgage Loan under the related Non-Serviced PSA reimbursed out of general collections on the Mortgage Loans), with interest on such Nonrecoverable Advances at the Reimbursement Rate that are paid or reimbursed from principal collections on the Mortgage Loans in a period during which such principal collections would have otherwise been included in the Principal Distribution Amount for such Distribution Date and (B) Workout-Delayed Reimbursement Amounts paid or reimbursed from principal collections on the Mortgage Loans in a period during which such principal collections would have otherwise been included in the Principal Distribution Amount for such Distribution Date (provided that, in the case of clauses (A) and (B) above, if any of the amounts that were reimbursed from principal collections on the Mortgage Loans (including REO Mortgage Loans) are subsequently recovered on the related Mortgage Loan (or REO Mortgage Loan), such

 

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recovery will increase the Principal Distribution Amount for the Distribution Date related to the period in which such recovery occurs).

 

Principal Prepayment”: Any payment of principal made by the Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due Date as a result of such prepayment.

 

Principal Shortfall”: For any Distribution Date after the initial Distribution Date, the amount, if any, by which (a) the related Principal Distribution Amount for the preceding Distribution Date, exceeds (b) the aggregate amount actually distributed on the preceding Distribution Date in respect of such Principal Distribution Amount. The Principal Shortfall for the initial Distribution Date will be zero.

 

Privileged Communication”: Any correspondence between the Directing Holder and the Special Servicer related to any Specially Serviced Loan (other than with respect to any Excluded Loan) or the exercise of the Directing Holder’s consent or consultation rights under this Agreement.

 

Privileged Information”: Any (i) Privileged Communication, (ii) strategically sensitive information (including, without limitation, any information contained within any Asset Status Report or Final Asset Status Report) that the Special Servicer has labeled and reasonably determined could compromise the Trust’s position in any ongoing or future negotiations with the related Mortgagor or other interested party that is labeled or otherwise identified as Privileged Information by the Special Servicer or (iii) information subject to attorney-client privilege. The Master Servicer, the Special Servicer, the Operating Advisor and the Asset Representations Reviewer may rely on any identification of materials as “attorney-client privileged” without liability for any such reliance hereunder.

 

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 Information was already known to such Restricted Party and not otherwise subject to a confidentiality obligation and/or (d) the Restricted Party is required by law, rule, regulation, order, judgment or decree to disclose such information (in the case of the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator and the Trustee, as evidenced by an officer’s certificate certifying that such party has determined that it is required by law, rule, regulation, order, judgment or decree to disclose such information (which shall be an additional expense of the Trust) delivered to each of the Master Servicer, the Special Servicer, the Directing Holder (other than with respect to any applicable Excluded Loan), the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator and the Trustee).

 

Privileged Person”: The Depositor and its designees, the Placement Agents, the Underwriters, the Mortgage Loan Sellers, the Sponsors, the Master Servicer, the Special Servicer

 

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(including, for the avoidance of doubt, any Excluded Special Servicer), the Trustee, the Certificate Administrator, any Additional Servicer designated by the Master Servicer or the Special Servicer, the Operating Advisor, any Affiliate of the Operating Advisor designated by the Operating Advisor, the Asset Representations Reviewer, any Companion Holder who provides an Investor Certification, any Non-Serviced Master Servicer, any Other Servicer, any Person (including the related Directing Holder) who provides the Certificate Administrator with an Investor Certification and any NRSRO (including any Rating Agency) that provides the Certificate Administrator with an NRSRO Certification, which Investor Certification and NRSRO Certification may be submitted electronically via the 17g-5 Information Provider’s Website; provided that:

 

(a)                (i) if a Privileged Person is an Excluded Controlling Class Holder, then such Privileged Person shall not be entitled to receive any Excluded Information via the Certificate Administrator’s Website unless a loan-by-loan segregation is later performed by the Certificate Administrator, in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loans, and (ii) if a Privileged Person is a Borrower Party but not an Excluded Controlling Class Holder, then such Privileged Person shall not be entitled to receive any information other than the Distribution Date Statement;

 

(b)               if the Special Servicer obtains knowledge that it is a Borrower Party, the Special Servicer will nevertheless be a Privileged Person; provided, however, that the Special Servicer may not directly or indirectly provide any information related to any related Excluded Special Servicer Loan, which may include any Asset Status Reports, Final Asset Status Reports (or summaries thereof), and such other information specified in this Agreement pertaining to such Excluded Special Servicer Loan to the related Borrower Party, any of the Special Servicer’s employees or personnel or any of its Affiliates involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or, to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, and will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with these obligations; and

 

(c)                notwithstanding clause (a) above, any Excluded Controlling Class Holder may reasonably request and obtain from the Master Servicer or the Special Servicer, in accordance with terms of this Agreement, any Excluded Information relating to any Excluded Controlling Class Loan with respect to which such Excluded Controlling Class Holder is not a Borrower Party (if such Excluded Information is not otherwise available via the Certificate Administrator’s Website on account of it constituting Excluded Information). Notwithstanding any provision to the contrary herein, neither the Master Servicer nor the Certificate Administrator has any obligation to restrict access by the Special Servicer or any Excluded Special Servicer to any information related to any Excluded Special Servicer Loan.

 

In determining whether any Person is an Additional Servicer or an Affiliate of the Operating Advisor, the Certificate Administrator may rely on a certification by the Master Servicer, the Special Servicer, any Mortgage Loan Seller or the Operating Advisor, as the case may be; provided, further, that nothing in this Agreement shall be construed as an obligation of the Master Servicer or the Certificate Administrator to restrict the Special Servicer’s access to any

 

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information on the Master Servicer’s website or the Certificate Administrator’s Website and in no case shall the Master Servicer or the Certificate Administrator be held liable if the Special Servicer accesses any Excluded Special Servicer Information relating to the Excluded Special Servicer Loans; provided, further, however, that any Excluded Controlling Class Holder shall be permitted to reasonably request and obtain in accordance with Section 4.02(f) any Excluded Information relating to any Excluded Controlling Class Loan with respect to which such Excluded Controlling Class Holder is not a Borrower Party (if such Excluded Information is not otherwise available to such Excluded Controlling Class Holder via the Certificate Administrator’s Website). Notwithstanding any of the foregoing to the contrary, if the Special Servicer obtains knowledge that it is a Borrower Party with respect to any Mortgage Loan, the Special Servicer shall nevertheless have access to the Master Servicer’s website and the Certificate Administrator’s Website; provided that the Special Servicer (i) shall not, directly or indirectly provide any information related to such Excluded Special Servicer Mortgage Loan to (A) any related Borrower Party, (B) any employees or personnel of the Special Servicer or any of its Affiliates involved in the management of any investment in any related Borrower Party or the related Mortgaged Property or (C) to the extent known to the Special Servicer, any non-Affiliate that holds a direct or indirect ownership interest in any related Borrower Party or the related Mortgaged Property, and (ii) shall maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.

 

Prohibited Party”: Any proposed Servicing Function Participant that is listed on the Depositor’s Do Not Hire List.

 

Prohibited Prepayment”: As defined in the definition of Compensating Interest Payments.

 

Proposed Course of Action”: As defined in Section 2.03(l).

 

Proposed Course of Action Notice”: As defined in Section 2.03(l).

 

Prospectus”: The Prospectus, dated November 9, 2021.

 

PSA Party Repurchase Request”: As defined in Section 2.03(k)(ii).

 

PTCE”: Prohibited Transaction Class Exemption.

 

Purchase Price”: With respect to any Mortgage Loan (or any related REO Loan) (including, to the extent required pursuant to the final paragraph hereof, any related Companion Loan) to be purchased pursuant to (A) Section 6 of the related Mortgage Loan Purchase Agreement by the related Mortgage Loan Seller, (B) Section 3.16, or (C) Section 9.01, a price, without duplication, equal to:

 

(i)                the outstanding principal balance of such Mortgage Loan (or any related REO Loan (excluding for such purpose, the related Companion Loan, if applicable)) as of the date of purchase; plus

 

(ii)               all accrued and unpaid interest on the Mortgage Loan (or any related REO Loan (excluding for such purpose, the related Companion Loan, if

 

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applicable)), at the related Mortgage Rate in effect from time to time (excluding any portion of such interest that represents Default Interest or Excess Interest on an ARD Loan), to, but not including, the Due Date immediately preceding or coinciding with the Determination Date for the Collection Period of purchase; plus

 

(iii)              all related unreimbursed Servicing Advances plus accrued and unpaid interest on all related Advances at the Reimbursement Rate, Special Servicing Fees (whether paid or unpaid) and any other additional trust fund expenses (except for Liquidation Fees) in respect of such Mortgage Loan (or related REO Loan (excluding for such purpose, the related Companion Loan, if applicable)), if any; plus

 

(iv)              if such Mortgage Loan (or the related REO Loan) is being repurchased or substituted by the related Mortgage Loan Seller, pursuant to Section 6 of the applicable Mortgage Loan Purchase Agreement, all reasonable out-of-pocket expenses reasonably incurred or to be incurred by the Master Servicer, the Special Servicer, the Depositor, the Certificate Administrator, the Asset Representations Reviewer or the Trustee in respect of the omission, breach or defect giving rise to the repurchase or substitution obligation, including any expenses arising out of the enforcement of the repurchase or substitution obligation, including, without limitation, legal fees and expenses and any additional trust fund expenses relating to such Mortgage Loan (or related REO Loan); provided, however, that such out-of-pocket expenses shall not include expenses incurred by Certificateholders or Certificate Owners in instituting an Asset Review Vote Election, in taking part in an Asset Review Vote Election or in exercising such Certificateholder’s or Certificate Owner’s, as applicable, rights under the dispute resolution mechanics pursuant to Section 2.03(k); plus

 

(v)               Liquidation Fees, if any, payable with respect to such Mortgage Loan (or related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)) (which will not include any Liquidation Fees if such repurchase occurs prior to the expiration of the Extended Cure Period); plus

 

(vi)              solely in the case of a repurchase or substitution by the related Mortgage Loan Seller, the Asset Representations Reviewer Asset Review Fee for such Mortgage Loan, to the extent not previously paid by the related Mortgage Loan Seller.

 

Solely with respect to any Serviced Whole Loan to be sold pursuant to Section 3.16(a)(iii), “Purchase Price” shall mean the amount calculated in accordance with the preceding sentence in respect of the related Whole Loan, including, for such purposes, the Mortgage Loan and the related Companion Loan(s). With respect to any REO Property to be sold pursuant to Section 3.16(b), “Purchase Price” shall mean the amount calculated in accordance with the second preceding sentence in respect of the related REO Loan (including any related Companion Loan). With respect to any sale pursuant to Section 3.16(a)(ii) or Section 3.16(e) or for purposes of calculating any Gain-on-Sale Proceeds, the “Purchase Price” shall be allocated

 

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between the related Mortgage Loan and Companion Loan(s), in accordance with, and shall be equal to the amount provided pursuant to, the provisions of the related Intercreditor Agreement. With respect to any Joint Mortgage Loan, the Purchase Price that would be payable by each of the applicable Mortgage Loan Sellers for its related Mortgage Note will be its respective Mortgage Loan Seller Percentage Interest as of the Closing Date of the total Purchase Price for such Mortgage Loan. Notwithstanding the foregoing, with respect to any repurchase pursuant to subclause (A) and subclause (C) hereof, the “Purchase Price” shall not include any amounts payable in respect of any related Companion Loan.

 

Qualified Institutional Buyer”: A “qualified institutional buyer” as defined in Rule 144A under the Act.

 

Qualified Insurer”: (i) With respect to any Mortgage Loan, REO Loan or REO Property, an insurance company or security or bonding company qualified to write the related Insurance Policy in the relevant jurisdiction with an insurance financial strength rating of at least: (a) “A-” by S&P (or, if not rated by S&P, at least an equivalent rating by (A) two other NRSROs (which may include Fitch and/or KBRA) or (B) one NRSRO (which may include Fitch or KBRA) and (b) “A” by Fitch (or, if not rated by Fitch, at least “A-” or an equivalent rating as “A-” by one other NRSRO (which may include KBRA or S&P)), and (ii) with respect to the fidelity bond and errors and omissions insurance policy required to be maintained pursuant to Section 3.07(c), except as otherwise permitted by Section 3.07(c), an insurance company that has a claims paying ability (or the obligations which are guaranteed or backed by a company having such claims paying ability) rated by at least one of the following rating agencies of at least(a) “A3” by Moody’s, (b) “A-” by S&P, (c) “A-” by Fitch, (d) “A-:X” by A.M. Best Company, Inc. or, (e) “A(low)” by DBRS, or, in the case of clauses (i) or (ii), any other insurer acceptable to the Rating Agencies, as evidenced by a Rating Agency Confirmation.

 

Qualified Mortgage”: A “qualified mortgage” within the meaning of Code Section 860G(a)(3), but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective obligation to be treated as a qualified mortgage.

 

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, the Asset Representations Reviewer or an Affiliate of the Operating Advisor or the Asset Representations Reviewer, (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) currently has a special servicer rating of at least “CSS3” from Fitch, (vii) is listed on S&P’s Select Servicer List as a “U.S. Commercial Mortgage Special Servicer”, and (viii) is currently acting as a special servicer in a transaction rated by KBRA and has not been publicly cited by KBRA as having servicing concerns as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or

 

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placement on “watch status” in contemplation of a rating downgrade or withdrawal) of securities in a transaction serviced by the applicable servicer prior to the time of determination.

 

Qualified Substitute Mortgage Loan”: A substitute mortgage loan (other than with respect to the Whole Loans, for which no substitution will be permitted) replacing a Mortgage Loan with respect to which a Material Defect exists that must, on the date of substitution: (i) have an outstanding principal balance, after application of all scheduled payments of principal and interest due during or prior to the month of substitution, whether or not received, not in excess of the Stated Principal Balance of the removed Mortgage Loan as of the Due Date in the calendar month during which the substitution occurs; (ii) have a Mortgage Rate not less than the Mortgage Rate of the removed Mortgage Loan, determined without regard to any prior modification, waiver or amendment of the terms of the removed Mortgage Loan; (iii) have the same Due Date as and Grace Period no longer than that of the removed Mortgage Loan; (iv) accrue interest on the same basis as the removed Mortgage Loan (for example, on the basis of a 360 day year consisting of twelve 30-day months); (v) have a remaining term to stated maturity not greater than, and not more than two (2) years less than, the remaining term to stated maturity of the removed Mortgage Loan; (vi) have a then-current loan-to-value ratio equal to or less than the lesser of the loan-to-value ratio for the removed Mortgage Loan as of the Closing Date and 75%, in each case using the “value” for the Mortgaged Property as determined using an Appraisal; (vii) comply as of the date of substitution in all material respects with all of the representations and warranties set forth in the applicable Mortgage Loan Purchase Agreement; (viii) have an environmental report that indicates no material adverse environmental conditions with respect to the related Mortgaged Property and which will be delivered as a part of the related Mortgage File; (ix) have a then-current debt service coverage ratio at least equal to the greater of the original debt service coverage ratio of the removed Mortgage Loan as of the Closing Date and 1.25x; (x) constitute a “qualified replacement mortgage” within the meaning of Section 860G(a)(4) of the Code as evidenced by an Opinion of Counsel (provided at the applicable Mortgage Loan Seller’s expense); (xi) not have a maturity date or an amortization period that extends to a date that is after the date two (2) years prior to the Rated Final Distribution Date; (xii) have comparable prepayment restrictions to those of the removed Mortgage Loan; (xiii) not be substituted for a removed Mortgage Loan unless the Trustee and the Certificate Administrator have received Rating Agency Confirmation from each Rating Agency (the cost, if any, of obtaining such Rating Agency Confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have been approved (so long as a Control Termination Event is not continuing and the affected Mortgage Loan is not an Excluded Loan with respect to either the Directing Holder or, if the Directing Holder is the Directing Certificateholder, the Holder of the majority of the Controlling Class, as applicable) by the Directing Holder; (xv) prohibit defeasance within two (2) years of the Closing Date; (xvi) not be substituted for a removed Mortgage Loan if it would result in an Adverse REMIC Event other than the imposition of tax on the Trust or any Trust REMIC expressly permitted or contemplated to be imposed by the terms of this Agreement, as determined by an Opinion of Counsel at the cost of the related Mortgage Loan Seller; (xvii) have an engineering report that indicates no material adverse property condition or deferred maintenance with respect to the related Mortgaged Property that will be delivered as a part of the related Servicing File; and (xviii) be current in the payment of all scheduled payments of principal and interest then due. If more than one mortgage loan is substituted for a removed Mortgage Loan, then the amounts described in clause (i) shall be determined on the basis of aggregate Stated Principal Balances and each such proposed Qualified Substitute Mortgage Loan shall individually satisfy each of the requirements specified in clauses (ii) through (xviii); provided that the rates

 

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described in clause (ii) above and the remaining term to stated maturity referred to in clause (v) above shall be determined on a weighted average basis; provided, further, that no individual Mortgage Rate (net of the Servicing Fee Rate, the Certificate Administrator/Trustee Fee Rate, the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC® Intellectual Property Royalty License Fee Rate and, in the case of a Non-Serviced Mortgage Loan, the related Non-Serviced Primary Servicing Fee Rate) shall be lower than the highest fixed Pass-Through Rate (and not based on, or subject to a cap equal to, the WAC Rate) of any Class of Principal Balance Certificates having a Certificate Balance then outstanding. When a Qualified Substitute Mortgage Loan is substituted for a removed Mortgage Loan, the applicable Mortgage Loan Seller shall certify that the Qualified Substitute Mortgage Loan meets all of the requirements of the above definition and shall send such certification to the Trustee, the Certificate Administrator and, if no Consultation Termination Event is continuing, the Directing Holder.

 

RAC No-Response Scenario”: As defined in Section 3.25(a).

 

RAC Requesting Party”: As defined in Section 3.25(a).

 

Rated Final Distribution Date”: As to each Class of Certificates, the Distribution Date in November 2054.

 

Rating Agency”: Each of Fitch, KBRA and S&P.

 

Rating Agency Confirmation”: With respect to any matter, confirmation in writing (which may be in electronic form) 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 Certificates (if then rated by the Rating Agency); provided that a written waiver or other acknowledgment from the Rating Agency indicating its decision not 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.

 

Rating Agency Inquiry”: As defined in Section 4.07(c).

 

Rating Agency Q&A Forum and Document Request Tool”: As defined in Section 4.07(c).

 

Realized Loss”: As defined in Section 4.04(a). A Realized Loss in respect of The Westchester Mortgage Loan held by the Westchester Loan REMIC shall be a Realized Loss in respect of the Westchester Loan REMIC Regular Interest.

 

Record Date”: With respect to any Distribution Date, the last Business Day of the month immediately preceding the month in which that Distribution Date occurs.

 

Regular Certificates”: Any of the Class A-1, Class A-3, Class A-4, Class A-5, Class A-SB, Class X-A, Class X-B, Class A-S, Class B, Class C, Class X-D, Class D, Class E, Class F-RR, Class G-RR, Class J-RR and Class NR-RR Certificates.

 

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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.

 

Regulation AB Companion Loan Securitization”: As defined in Section 11.16(a).

 

Regulation AB Servicing Officer”: Any officer or employee of the Master Servicer or the Special Servicer, as applicable, involved in, or responsible for, the administration and servicing of the Mortgage Loans or Companion Loans, or this Agreement and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s or employee’s knowledge of and familiarity with the particular subject, and, in the case of any certification required to be signed by a Servicing Officer, such an officer or employee whose name and specimen signature appears on a list of servicing officers furnished to the Trustee and/or the Certificate Administrator by the Master Servicer or the Special Servicer, as applicable, as such list may from time to time be amended.

 

Regulation D”: Regulation D under the Act.

 

Regulation S”: Regulation S under the Act.

 

Regulation S Book-Entry Certificates”: The Non-Registered Certificates sold to institutions that are non-United States Securities Persons in Offshore Transactions in reliance on Regulation S and represented by one or more Book-Entry Certificates that are Non-Registered Certificates deposited with the Certificate Administrator as custodian for the Depository.

 

Reimbursement Rate”: The rate per annum applicable to the accrual of interest on Servicing Advances in accordance with Section 3.03(d) and P&I Advances in accordance with Section 4.03(d), which rate per annum shall equal the Prime Rate, compounded annually (provided that, solely with respect to the Master Servicer, the Reimbursement Rate shall be subject to a floor rate of 2.0%).

 

Related Certificates” and “Related Lower-Tier Regular Interests”: For each of the following Classes of Certificates, the related Class of Lower-Tier Regular Interests; and for each of the following Classes of Lower-Tier Regular Interests, the related Class of Certificates, as applicable, set forth below:

 

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Related Certificates 

Related Lower-Tier Regular Interest 

Class A-1 Certificates Class LA-1 Uncertificated Interest
Class A-3 Certificates Class LA-3 Uncertificated Interest
Class A-4 Certificates Class LA-4 Uncertificated Interest
Class A-5 Certificates Class LA-5 Uncertificated Interest
Class A-SB Certificates Class LA-SB Uncertificated Interest
Class A-S Certificates Class LA-S Uncertificated Interest
Class B Certificates Class LB Uncertificated Interest
Class C Certificates Class LC Uncertificated Interest
Class D Certificates Class LD Uncertificated Interest
Class E Certificates Class LE Uncertificated Interest
Class F-RR Certificates Class LF-RR Uncertificated Interest
Class G-RR Certificates Class LG-RR Uncertificated Interest
Class J-RR Certificates Class LJ-RR Uncertificated Interest
Class NR-RR Certificates Class LNR-RR Uncertificated Interest

 

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

 

Relevant Servicing Criteria”: The Servicing Criteria applicable to a specific party, as set forth on Exhibit AA. For clarification purposes, multiple parties can have responsibility for the same Relevant Servicing Criteria. With respect to a Servicing Function Participant engaged by the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the Relevant Servicing Criteria applicable to the Master Servicer, the Special Servicer, the Trustee and/or the Certificate Administrator.

 

REMIC”: A “real estate mortgage investment conduit” as defined in Section 860D of the Code (or any successor thereto).

 

REMIC Administrator”: The Certificate Administrator or any REMIC administrator appointed pursuant to Section 10.04.

 

REMIC Provisions”: Provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Sections 860A through 860G of subchapter M of chapter 1 of the Code, and related provisions, and temporary and final Treasury Regulations (or proposed regulations that would apply by reason of their proposed effective date to the extent not inconsistent with temporary or final regulations) and any rulings or announcements promulgated thereunder, as the foregoing may be in effect from time to time.

 

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

 

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REO Account”: A segregated custodial account or accounts created and maintained by the Special Servicer pursuant to Section 3.14(b) on behalf of the Trustee for the benefit of the Certificateholders and with respect to any Serviced Whole Loan, for the benefit of the related Serviced Companion Noteholder, which shall initially be entitled “3650 REIT Loan Servicing LLC [or the applicable successor Special Servicer], as Special Servicer, on behalf of Wells Fargo Bank, National Association, as Trustee, for the registered Holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1 and the related Companion Loan Holder REO Account, as their interests may appear”. Any such account or accounts shall be an Eligible Account.

 

REO Acquisition”: The acquisition for federal income tax purposes of any REO Property pursuant to Section 3.09.

 

REO Disposition”: The sale or other disposition of the REO Property pursuant to Section 3.16.

 

REO Extension”: As defined in Section 3.14(a).

 

REO Loan”: Each of the Mortgage Loans (and, with respect to any Serviced Whole Loan, the related Companion Loan(s)) deemed for purposes hereof to be outstanding with respect to each REO Property. Each REO Loan shall be deemed to be outstanding for so long as the applicable portion of the related REO Property (or beneficial interest therein, in the case of a Non-Serviced Mortgage Loan) remains part of the Trust Fund and provides for Assumed Scheduled Payments on each Due Date therefor, and otherwise has the same terms and conditions as its predecessor Mortgage Loan or Companion Loan, if applicable, including, without limitation, with respect to the calculation of the Mortgage Rate in effect from time to time (such terms and conditions to be applied without regard to the default on such predecessor Mortgage Loan or Companion Loan, if applicable). Each REO Loan shall be deemed to have an initial outstanding principal balance and Stated Principal Balance equal to the outstanding principal balance and Stated Principal Balance, respectively, of its predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition. All amounts due and owing in respect of the predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition, including, without limitation, accrued and unpaid interest, shall continue to be due and owing in respect of a REO Loan. All amounts payable or reimbursable to the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator or the Trustee, as applicable, in respect of the predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition, including, without limitation, any unpaid Special Servicing Fees and Servicing Fees, additional Trust Fund expenses and any unreimbursed Advances, together with any interest accrued and payable to the Master Servicer or the Trustee, as applicable, in respect of such Advances in accordance with Section 3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable to the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator or the Trustee, as applicable, in respect of an REO Loan. In addition, Unliquidated Advances and Nonrecoverable Advances with respect to such REO Loan, in each case, that were paid from collections on the related Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of “Principal Distribution Amount” shall be deemed outstanding until recovered. Notwithstanding

 

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anything to the contrary, with respect to each Serviced Whole Loan, no amounts relating to the related REO Property or REO Loan allocable to the related Companion Loan will be available for amounts due to the Certificateholders or to reimburse the Trust, other than in the limited circumstances related to Servicing Advances, indemnification payments, Special Servicing Fees and other reimbursable expenses related to such Serviced Whole Loan incurred with respect to such Serviced Whole Loan, in accordance with Section 3.05(a), or with respect to a Subordinate Companion Loan, as set forth in the related Intercreditor Agreement.

 

REO Mortgage Loan”: Any REO Loan allocable to a Mortgage Loan (but not a Companion Loan).

 

REO Property”: A Mortgaged Property acquired by the Special Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for the benefit of the Certificateholders (and the related Companion Holder, subject to the related Intercreditor Agreement, with respect to a Mortgaged Property securing a Serviced Whole Loan) to the extent set forth herein and the Trustee (as holder of the Lower-Tier Regular Interests) (and also including, if applicable, the Trust’s beneficial interest in a Non-Serviced Mortgaged Property acquired by the applicable Non-Serviced Special Servicer on behalf of, and in the name of, the applicable Non-Serviced Trustee or a nominee thereof for the benefit of the certificateholders under the applicable Non-Serviced Trust) through foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in accordance with applicable law in connection with the default or imminent default of a Mortgage Loan. References herein to the Special Servicer acquiring, maintaining, managing, inspecting, insuring, selling or reporting or to Appraisal Reduction Amounts and Final Recovery Determinations with respect to an “REO Property”, shall not include the Trust’s beneficial interest in a Non-Serviced Mortgaged Property. For the avoidance of doubt, REO Property, to the extent allocable to a Companion Loan, shall not be an asset of the Trust Fund, any Trust REMIC or the Grantor Trust.

 

REO Revenues”: All income, rents and profits derived from the ownership, operation or leasing of any REO Property.

 

Reportable Event”: As defined in Section 11.07.

 

Reporting Requirements”: As defined in Section 11.13.

 

Reporting Servicer”: The Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Custodian or any Servicing Function Participant engaged by such parties.

 

Repurchased Note”: As defined in Section 3.34.

 

Repurchase Request”: As defined in Section 2.02(g).

 

Repurchase Request Recipient”: As defined in Section 2.02(g).

 

Repurchasing Mortgage Loan Seller”: As defined in Section 3.34.

 

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Request for Release”: A release signed by a Servicing Officer of the Master Servicer or the Special Servicer, as applicable, in the form of Exhibit E.

 

Requesting Certificateholder”: As defined in Section 2.03(l)(iii).

 

Requesting Holders”: As defined in Section 4.05(b).

 

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

 

Resolution Failure”: As defined in Section 2.03(k)(iii).

 

Resolved”: With respect to a Repurchase Request, (i) the related Material Defect has been cured, (ii) the related Mortgage Loan has been repurchased in accordance with the related Mortgage Loan Purchase Agreement, (iii) a mortgage loan has been substituted for the related Mortgage Loan in accordance with the related Mortgage Loan Purchase Agreement, (iv) the applicable Mortgage Loan Seller has paid the Loss of Value Payment, (v) a contractually binding agreement has been entered into between the Enforcing Servicer, on behalf of the Trust, and the related Mortgage Loan Seller that settles the related Mortgage Loan Seller’s obligations under the related Mortgage Loan Purchase Agreement, or (vi) the related Mortgage Loan is no longer property of the Trust as a result of a sale or other disposition in accordance with this Agreement.

 

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, 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, 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.

 

Restricted Period”: The forty (40) day period prescribed by Regulation S commencing on the later of (a) the date upon which Certificates are first offered to Persons other than the Placement Agents or Underwriters and any other distributor (as such term is defined in Regulation S) of the Certificates and (b) the Closing Date.

 

Retained Certificate Safekeeping Account”: With respect to the HRR Certificates, the Retained Horizontal Interest Safekeeping Account.

 

Retained Fee Rate”: An amount equal to 0.00125% per annum with respect to each Mortgage Loan.

 

Retained Horizontal Interest Safekeeping Account”: An account maintained by the Certificate Administrator pursuant to this Agreement, which account shall be established at the direction of the Retaining Sponsor for the benefit of the Holders of the HRR Certificates.

 

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Retaining Party”: Any Holder of all or any portion of the HRR Certificates. As of the Closing Date, 3650 REIT 2 PF-1 BHE LLC is the Retaining Party.

 

Retaining Sponsor”: 3650 REIT, acting as retaining sponsor as such term is defined in the Credit Risk Retention Rule.

 

Review Materials”: As defined in Section 12.01(b).

 

Review Package”: A Rating Agency Confirmation request and any supporting documentation delivered therewith.

 

Revised Rate”: With respect to any ARD Loan, the increased interest rate after the related Anticipated Repayment Date (in the absence of a default) for each applicable Mortgage Loan, as calculated and as set forth in the related Mortgage Loan documents.

 

Risk Retention Affiliate” or “Risk Retention Affiliated”: An “affiliate of” or “affiliated with” as such terms are defined in the Credit Risk Retention Rule.

 

Risk Retention Certificateholder”: The holder of the HRR Certificates.

 

Risk Retention Certificates”: The HRR Certificates.

 

Rule 144A”: Rule 144A under the Act.

 

Rule 144A Book-Entry Certificate”: With respect to the Non-Registered Certificates offered and sold in reliance on Rule 144A, a single, permanent Book-Entry Certificate, in definitive, fully registered form without interest coupons.

 

S&P”: S&P Global Ratings, a Standard & Poor’s Financial Services LLC business, or its successor in interest. If neither S&P nor any successor remains in existence, “S&P” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, the Master 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”: The Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission’s staff).

 

Sarbanes-Oxley Certification”: As defined in Section 11.05(a)(iv).

 

Schedule AL Additional File”: The data file containing additional information or schedules regarding data points in the CREFC® Schedule AL File in accordance with Item 1111(h)(4) of Regulation AB and Item 601(b)(103) of Regulation S-K under the Securities Act.

 

Scheduled Principal Distribution Amount”: With respect to any Distribution Date, the aggregate of the principal portions of the following: (a) all Periodic Payments (excluding Balloon Payments) due in respect of such Mortgage Loans during or, if and to the extent not previously received or advanced pursuant to Section 4.03 in respect of a preceding Distribution

 

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Date (and not previously distributed to Certificateholders), prior to, the related Collection Period, and all Assumed Scheduled Payments with respect to the Mortgage Loans for the related Collection Period, in each case to the extent either (i) paid by the Mortgagor as of the Determination Date or such later date as would permit inclusion in the Available Funds for such Distribution Date (or (A) with respect to each Mortgage Loan with a Due Date occurring or a Grace Period ending after the related Determination Date, the related Due Date or last day of such Grace Period, as applicable, to the extent received by the Master Servicer as of the Business Day preceding the related P&I Advance Date and (B) with respect to a Non-Serviced Mortgage Loan, received by the Master Servicer as of such date as would permit inclusion in the Available Funds for such Distribution Date) or (ii) advanced by the Master Servicer or the Trustee pursuant to Section 4.03 in respect of such Distribution Date, and (b) all Balloon Payments with respect to the Mortgage Loans to the extent received on or prior to the related Determination Date or such later date as would permit inclusion in the Available Funds for such Distribution Date (or, with respect to each Mortgage Loan with a Due Date occurring or a Grace Period ending after the related Determination Date, the related Due Date or last day of such Grace Period, as applicable, to the extent received by the Master Servicer as of the Business Day preceding the related P&I Advance Date), and to the extent not included in clause (a) above for the subject Distribution Date or included in the Scheduled Principal Distribution Amount for any prior Distribution Date. The Scheduled Principal Distribution Amount from time to time will include all late payments of principal made by a Mortgagor with respect to the Mortgage Loans, including late payments in respect of a delinquent balloon payment, received by the times described above in this definition, except to the extent those late payments are otherwise available to reimburse the Master Servicer or the Trustee for prior Advances, as described above.

 

All references to “Mortgage Loan”, “Non-Serviced Mortgage Loan” or “Mortgage Loans” in this definition shall include, without limitation, any REO Mortgage Loans, to the extent applicable.

 

Secure Data Room”: The webpage, which shall initially be located within the Certificate Administrator’s Website (initially “www.ctslink.com”), under the “Secure Data Room” tab on the page relating to this transaction.

 

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

 

Security Agreement”: With respect to any Mortgage Loan, any security agreement or equivalent instrument, whether contained in the related Mortgage or executed separately, creating in favor of the holder of such Mortgage a security interest in the personal property constituting security for repayment of such Mortgage Loan.

 

Senior Certificate”: Any Class A Certificate (other than the Class A-S Certificates) or Class X Certificate.

 

Serviced AB Whole Loan”: Each Serviced Whole Loan indicated as having a Subordinate Companion Loan in the “Whole Loan” chart in the Preliminary Statement. For the avoidance of doubt, there are no Serviced AB Whole Loans related to the Trust.

 

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Serviced Subordinate Companion Loan”: Any Subordinate Companion Loan related to a Serviced AB Whole Loan.

 

Serviced Companion Loan”: A Companion Loan that is part of a Serviced Whole Loan.

 

Serviced Companion Loan Securities”: Any commercial mortgage-backed securities that evidence an interest in or are secured by the assets of an issuing entity, which assets include a Companion Loan that is part of a Serviced Whole Loan (or a portion of or interest in such Companion Loan).

 

Serviced Companion Noteholders”: The holder of a Serviced Companion Loan.

 

Serviced Mortgage Loan”: Each Mortgage Loan related to a Serviced Whole Loan. For the avoidance of doubt, “Serviced Mortgage Loans” exclude any Non-Serviced Mortgage Loan.

 

Serviced Pari Passu Companion Loans”: Each Pari Passu Companion Loan related to a Serviced Whole Loan.

 

Serviced Pari Passu Mortgage Loan”: Each Mortgage Loan related to a Serviced Pari Passu Whole Loan.

 

Serviced Pari Passu Whole Loan”: Each Serviced Whole Loan other than an AB Whole Loan.

 

Serviced REO Loan”:  Any REO Loan that is serviced by the Special Servicer pursuant to this Agreement.

 

Serviced REO Property”:  Any REO Property that is serviced by the Special Servicer pursuant to this Agreement.

 

Serviced Securitized Companion Loan”: Any Companion Loan that is a component of a Serviced Whole Loan, if and for so long as each such Companion Loan is included in a Regulation AB Companion Loan Securitization.

 

Serviced Whole Loan”: Each of (i) the Whole Loans identified as “Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (ii) prior to the related Servicing Shift Securitization Date, the Whole Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement.

 

Serviced Whole Loan Controlling Holder”: The “Controlling Noteholder” or similar term identified in the Intercreditor Agreement related to a Serviced Whole Loan.

 

Serviced Whole Loan Remittance Date”: With respect to any Serviced Companion Loan: (i) the date specified as the applicable remittance date (or equivalent concept) in the related Intercreditor Agreement or (ii) if no such applicable remittance date (or equivalent concept) is so specified in the related Intercreditor Agreement, then the earlier of (A) the Master

 

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Servicer Remittance Date and (B) if the Companion Loan has been included in an Other Securitization, one (1) Business Day after the “determination date” (or any term substantially similar thereto) as defined in the related Other Pooling and Servicing Agreement, in each case, as long as the date on which the remittance is required is at least one (1) Business Day after the Due Date.

 

Servicer Termination Event”: One or more of the events described in Section 7.01(a).

 

Servicing Account”: The account or accounts created and maintained pursuant to Section 3.03(a).

 

Servicing Advances”: All customary, reasonable and necessary “out-of-pocket” costs and expenses (including attorneys’ fees and expenses and fees of real estate brokers) incurred by the Master Servicer, the Special Servicer, Certificate Administrator, or the Trustee, as applicable, in connection with the servicing and administering of (a) a Mortgage Loan (and in the case of a Serviced Mortgage Loan, the related Serviced Companion Loan), other than a Non-Serviced Mortgage Loan, in respect of which a default, delinquency or other unanticipated event has occurred or as to which a default is reasonably foreseeable or (b) a Mortgaged Property securing a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or an REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), including, in the case of each of such clause (a) and clause (b), but not limited to, (x) the cost of (i) compliance with the Master Servicer’s obligations set forth in Section 3.03(c), (ii) the preservation, restoration and protection of a Mortgaged Property, (iii) obtaining any Insurance and Condemnation Proceeds or any Liquidation Proceeds of the nature described in clauses (i) – (vi) of the definition of “Liquidation Proceeds,” (iv) any enforcement or judicial proceedings with respect to a Mortgaged Property, including foreclosures and (v) the operation, leasing, management, maintenance and liquidation of any REO Property and (y) any amount specifically designated herein to be paid as a “Servicing Advance”. Notwithstanding anything to the contrary, “Servicing Advances” shall not include allocable overhead of the Master Servicer or the Special Servicer, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses or costs and expenses incurred by any such party in connection with its purchase of a Mortgage Loan or REO Property. None of the Master Servicer, the Special Servicer or the Trustee shall make any Servicing Advance in connection with the exercise of any cure rights or purchase rights granted to the holder of a Serviced Companion Loan under the related Intercreditor Agreement or this Agreement.

 

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 AA.

 

Servicing Fee”: With respect to each Mortgage Loan (including each Non-Serviced Mortgage Loan), Serviced Companion Loan and each successor REO Loan, the fee payable to the Master Servicer pursuant to the first paragraph of Section 3.11(a).

 

Servicing Fee Rate”: With respect to (a) each Mortgage Loan (other than a Non-Serviced Mortgage Loan) and any successor REO Loan, a per annum rate equal to the rate set

 

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forth on the Mortgage Loan Schedule under the heading “Servicing Fee Rate”, which rate includes, in each such case, the rate at which applicable master, primary and sub-servicing fees accrue, in each case computed on the basis of the Stated Principal Balance of the related Mortgage Loan or REO Mortgage Loan in the same manner in which interest is calculated in respect of such loans, (b) each Serviced Pari Passu Companion Loan, the rate set forth on the Mortgage Loan Schedule under the heading “Primary Servicing Fee Rate” and (c) each Non-Serviced Mortgage Loan and each successor REO Mortgage Loan, a per annum rate equal to the rate set forth on the Mortgage Loan Schedule under the heading “Master Servicing Fee Rate”. This rate includes, in each such case, the rate at which applicable master servicing fees and subservicing fees accrue, in each case computed on the basis of the Stated Principal Balance of the related Mortgage Loan, Serviced Companion Loan or REO Loan in the same manner in which interest is calculated in respect of such loans.

 

Servicing File”: A photocopy of all items required to be included in the Mortgage File, together with each of the following, to the extent such items were actually delivered to the related Mortgage Loan Seller, with respect to a Mortgage Loan and (to the extent that the identified documents existed on or before the Closing Date and the applicable reference to Servicing File relates to any period after the Closing Date) delivered by the related Mortgage Loan Seller, to the Master Servicer: (i) a copy of any engineering reports or property condition reports; (ii) other than with respect to a hotel property (except with respect to tenanted commercial space within a hotel property), copies of a rent roll and, for any office, retail, industrial or warehouse property, a copy of all leases and estoppels and subordination and non-disturbance agreements delivered to the related Mortgage Loan Seller; (iii) copies of related financial statements or operating statements; (iv) all legal opinions (excluding attorney-client communications between the related Mortgage Loan Seller, and its counsel that are privileged communications or constitute legal or other due diligence analyses), Mortgagor’s certificates and certificates of hazard insurance and/or hazard Insurance Policies or other applicable Insurance Policies, if any, delivered in connection with the closing of the related Mortgage Loan; (v) a copy of the Appraisal for the related Mortgaged Property(ies); (vi) the documents that were delivered by or on behalf of the Mortgagor, which documents were required to be delivered in connection with the closing of the related Mortgage Loan; (vii) for any Mortgage Loan that the related Mortgaged Property is leased to a single tenant, a copy of the lease; and (viii) a copy of all environmental reports that were received by the applicable Mortgage Loan Seller, relating to the relevant Mortgaged Property.

 

Servicing Function Participant”: Any Additional Servicer, Sub-Servicer, Subcontractor or any other Person, other than the Master Servicer, the Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator, that is performing activities that address the Servicing Criteria, unless (i) such Person’s activities relate only to 5% or less of the Mortgage Loans by unpaid principal balance as of any date of determination in accordance with Article XI or (ii) the Depositor reasonably determines that a Master Servicer or the Special Servicer may, for the purposes of the Exchange Act reporting requirements pursuant to applicable Commission guidance, take responsibility for the assessment of compliance with the Servicing Criteria of such Person. The Servicing Function Participants as of the Closing Date are listed on Exhibit GG. Exhibit GG shall be updated and provided to the Depositor and the Certificate Administrator in accordance with Section 11.10(c).

 

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Servicing Officer”: Any officer and/or employee of the Master Servicer, the Special Servicer or any Additional Servicer involved in, or responsible for, the administration and servicing of the Mortgage Loans or Serviced Companion Loans, whose name and specimen signature appear on a list of servicing officers furnished by the Master Servicer, the Special Servicer or any Additional Servicer to the Certificate Administrator, the Trustee, the Operating Advisor and the Depositor on the Closing Date as such list may be amended from time to time thereafter.

 

Servicing Shift Lead Note”: With respect to any Servicing Shift Whole Loan, as of any date of determination, the note or other evidence of indebtedness and/or agreements evidencing the indebtedness of a Mortgagor under such Servicing Shift Whole Loan including any amendments or modifications, or any renewal or substitution notes, as of such date, the sale of which to the related Non-Serviced Trust will cause servicing to shift from this Agreement to the related Non-Serviced PSA pursuant to the terms of the related Intercreditor Agreement for such Servicing Shift Whole Loan. As of the Closing Date, there are no Servicing Shift Lead Notes related to the Trust.

 

Servicing Shift Mortgage Loan”: Any Mortgage Loan related to a Servicing Shift Whole Loan. For the avoidance of doubt, there are no Servicing Shift Mortgage Loans related to the Trust.

 

Servicing Shift Securitization Date”: With respect to any Servicing Shift Whole Loan, the date on which the related Servicing Shift Lead Note is included in a related Non-Serviced Trust, provided that such holder of a Servicing Shift Lead Note provides each of the parties to this Agreement (in each case only to the extent such party will not also be a party to the related Non-Serviced PSA) with notice in accordance with the terms of the related Intercreditor Agreement that such Servicing Shift Lead Note is to be included in such Non-Serviced Trust which notice shall include contact information for the related Non-Serviced Master Servicer, the Non-Serviced Special Servicer, the Non-Serviced Certificate Administrator and the Non-Serviced Trustee.

 

Servicing Shift Whole Loan”: Each Whole Loan identified as “Servicing Shift” under the column titled “Type” in the “Whole Loan” chart in the Preliminary Statement. For the avoidance of doubt, there are no Servicing Shift Whole Loans related to the Trust.

 

Servicing Standard”: As defined in Section 3.01(a).

 

Servicing Transfer Event”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or related Companion Loan, the occurrence of any of the following events:

 

(a)                the related Mortgagor has failed to make when due any Periodic Payment or a Balloon Payment, which failure continues unremedied (without regard to any grace period):

 

(i)                except in the case of a Balloon Mortgage Loan or Serviced Whole Loan delinquent in respect of its Balloon Payment, for sixty (60) days beyond the date on which the subject payment was due, or

 

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(ii)                solely in the case of a delinquent Balloon Payment, (A) after the date on which such Balloon Payment was due (except as described in clause B below) or (B) in the case of a Mortgage Loan or Serviced Whole Loan delinquent with respect to the Balloon Payment as to which the related Mortgagor delivered to the Master Servicer or the Special Servicer (and in either such case the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a copy thereof to the other servicer) on or before the date on which that Balloon Payment was due, a refinancing commitment or otherwise binding application or other similar binding document for refinancing from an acceptable lender or a signed purchase and sale agreement (in each case, reasonably acceptable to the Special Servicer), for one hundred twenty (120) days beyond the date on which the Balloon Payment was due (or such shorter period beyond the date on which that Balloon Payment as due during which the refinancing is scheduled to occur);

 

(b)               there has occurred a default (other than as set forth in clause (a) above and other than an Acceptable Insurance Default) that (i) in the judgment of the Master Servicer or the Special Servicer (in the case of the Special Servicer, (i) with the consent of the Directing Holder (other than with respect to an Excluded Loan), unless a Control Termination Event is continuing or (ii) if a Control Termination Event is continuing, following consultation with the Directing Holder (other than with respect to an Excluded Mortgage Loan), unless a Consultation Termination Event is continuing), materially impairs the value of the related Mortgaged Property as security for the Mortgage Loan or Serviced Whole Loan or otherwise materially adversely affects the interests of Certificateholders in the Mortgage Loan (or, in the case of a Serviced Whole Loan, the interests of the Certificateholders or the related Serviced Companion Noteholder in such Serviced Whole Loan), and (ii) continues unremedied for the applicable grace period under the terms of the Mortgage Loan or Serviced Whole Loan (or, if no grace period is specified and the default is capable of being cured, for thirty (30) days); provided that any default that results in acceleration of the related Mortgage Loan or Serviced Whole Loan without the application of any grace period under the related Mortgage Loan documents shall be deemed not to have a grace period; and provided, further, that any default requiring a Servicing Advance shall be deemed to materially and adversely affect the interests of the Certificateholders in the Mortgage Loan (or, in the case of any Serviced Whole Loan, the interests of the Certificateholders or the related Serviced Companion Noteholder in the Serviced Whole Loan);

 

(c)                the Master Servicer or the Special Servicer has determined (and, in the case of the Special Servicer, (i) with the consent of the Directing Holder (other than with respect to an Excluded Mortgage Loan), unless a Control Termination Event is continuing or (ii) if a Control Termination Event is continuing, following consultation with the Directing Holder (other than with respect to an Excluded Mortgage Loan), unless a Consultation Termination Event is continuing, that (i) a default (other than an Acceptable Insurance Default) under the Mortgage Loan or Serviced Whole Loan is reasonably foreseeable, (ii) such default will materially impair the value of the related Mortgaged Property as security for such Mortgage Loan or Serviced Whole Loan or otherwise materially adversely affects the interests of Certificateholders in the Mortgage Loan (or, in the case of a Serviced Whole Loan, the interests of the Certificateholders or any related Companion

 

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Holder in the Serviced Whole Loan), and (iii) the default is likely to continue unremedied for the applicable grace period under the terms of such Mortgage Loan or Serviced Whole Loan or, if no grace period is specified and the default is capable of being cured, for thirty (30) days; provided that any default that results in acceleration of the related Mortgage Loan or Serviced Whole Loan without the application of any grace period under the related Mortgage Loan documents shall be deemed not to have a grace period;

 

(d)               a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in any involuntary case under any present or future federal or state bankruptcy, insolvency or similar law or 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, has been entered against the related Mortgagor and such decree or order has remained in force and not dismissed for a period of sixty (60) days (or a shorter period if the Master Servicer or the Special Servicer (and, in the case of the Special Servicer, (i) with the consent of the Directing Holder (other than with respect to an Excluded Loan), unless a Control Termination Event is continuing, or (ii) if a Control Termination Event is continuing, following consultation with the Directing Holder (other than with respect to an Excluded Loan), unless a Consultation Termination Event is continuing) determines in accordance with the Servicing Standard that the circumstances warrant that the related Mortgage Loan or Serviced Whole Loan (or REO Mortgage Loan or REO Serviced Companion Loan) be transferred to special servicing);

 

(e)                the related Mortgagor consents to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to such Mortgagor or of or relating to all or substantially all of its property;

 

(f)                the related Mortgagor (i) admits in writing its inability to pay its debts generally as they become due or (ii) 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; or

 

(g)               the Master Servicer or the Special Servicer has received notice of the commencement of foreclosure or similar proceedings with respect to the related Mortgaged Property;

 

provided that any Crossed Underlying Loan (excluding any Non-Serviced Mortgage Loan) that is cross-collateralized with a Specially Serviced Loan shall be a Specially Serviced Loan so long as such Crossed Underlying Loan is cross-collateralized with a Specially Serviced Loan. If any Serviced Companion Loan becomes a Specially Serviced Loan, the related Serviced Mortgage Loan shall also become a Specially Serviced Loan. If any Serviced Mortgage Loan becomes a Specially Serviced Loan, the related Serviced Companion Loan shall also become a Specially Serviced Loan. With respect to a Non-Serviced Mortgage Loan, the occurrence of a “Servicing Transfer Event” shall be as defined in the Non-Serviced PSA.

 

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Notwithstanding anything to the contrary in the definition of “Servicing Transfer Event”, no event, circumstance or action that has occurred or will occur with respect to a COVID Modified Loan (other than an event described in clauses (a)(ii), (d), (e), (f)(ii) or (g) of the definition of “Servicing Transfer Event”) shall constitute a Servicing Transfer Event under this Agreement, but only if, and for so long as, the related Mortgagor is in compliance with the terms of the related COVID Modification Agreement.

 

Significant Obligor”: a “significant obligor” within the meaning of Item 1101(k) of Regulation AB. For the avoidance of doubt, there are no Significant Obligors under this Agreement.

 

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 date by which the related Mortgagor is required to deliver quarterly financial statements to the lender under the related Loan Agreement in connection with such calendar quarter (which date is set forth in Section 11.12 for any Significant Obligor with respect to the Trust).

 

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

 

Similar Law”: As defined in Section 5.03(n).

 

Sole Certificateholder”: Any Certificate Owner, or Certificate Owners acting in unanimity, holding 100% of the then-outstanding Class F-RR, Class G-RR, Class J-RR and Class NR-RR Certificates; provided, however, that the Certificate Balances and/or Notional Amounts, as applicable, of the Class A-1, Class A-3, Class A-4, Class A-5, Class A-SB, Class A-S, Class X-A, Class X-B, Class B, Class C, Class X-D, Class D and Class E Certificates have been reduced to zero.

 

Special Notice”: As defined in Section 5.06.

 

Special Servicer”: With respect to (i) each of the Mortgage Loans (other than any Non-Serviced Mortgage Loan and any Excluded Special Servicer Loan) and any Serviced Companion Loans, 3650 REIT Loan Servicing LLC and its successors in interest and assigns, or any successor special servicer appointed as provided herein and (ii) any Excluded Special Servicer Loan, if any, the related Excluded Special Servicer appointed pursuant to Section 7.01(g), as applicable and as the context may require.

 

Special Servicer Decision”: Any decision or Mortgagor request with respect to a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or a Serviced Whole Loan that is not a Major Decision or a Master Servicer Decision.

 

Special Servicing Fee”: With respect to each Specially Serviced Loan and REO Loan (other than a Non-Serviced Mortgage Loan), the fee payable to the Special Servicer pursuant to Section 3.11(b). For the avoidance of doubt, the Special Servicing Fee shall be deemed payable from the Westchester Loan REMIC with regard to The Westchester Mortgage Loan held by the Westchester Loan REMIC and otherwise from the Lower-Tier REMIC.

 

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Special Servicing Fee Rate”: With respect to each Specially Serviced Loan and REO Loan (other than a Non-Serviced Mortgage Loan), on a loan-by-loan basis, (a) 0.25% per annum computed on the basis of the Stated Principal Balance of the related Mortgage Loan (including any REO Loan) and Companion Loan, in the same manner as interest is calculated on the Specially Serviced Loans or REO Loans or (b) if such rate in clause (a) would result in a Special Servicing Fee with respect to a Specially Serviced Loan or REO Property (other than an REO Property acquired with respect to any Non-Serviced Whole Loan) that would be less than $5,000 in any given month, then the Special Servicing Fee Rate for such month for such Specially Serviced Loan or REO Property shall be such higher per annum rate as would result in a Special Servicing Fee equal to $5,000 for such month with respect to such Specially Serviced Loan or REO Property.

 

Specially Serviced Loan”: As defined in Section 3.01(a).

 

Sponsors”: The Mortgage Loan Sellers.

 

Startup Day”: The day designated as such in Section 10.01(b).

 

Stated Principal Balance”: With respect to any Mortgage Loan, as of any date of determination, an amount equal to (x) the Cut-off Date Balance of such Mortgage Loan (or in the case of a Qualified Substitute Mortgage Loan, the unpaid principal balance of such Mortgage Loan after application of all scheduled payments of principal and interest due during or prior to the month of substitution, whether or not received) minus (y) the sum of:

 

(i)                the principal portion of each Periodic Payment due on such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, the Due Date in the related month of substitution), to the extent received from the Mortgagor as of the Determination Date for, or advanced by the Master Servicer for, the most recent Distribution Date coinciding with or preceding such date of determination;

 

(ii)               all Principal Prepayments received with respect to such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, the Due Date in the related month of substitution) and on or prior to the Determination Date for the most recent Distribution Date coinciding with or preceding such date of determination;

 

(iii)              the principal portion of all Insurance and Condemnation Proceeds and Liquidation Proceeds received with respect to such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, the Due Date in the related month of substitution) and on or prior to the Determination Date for the most recent Distribution Date coinciding with or preceding such date of determination; and

 

(iv)              any reduction in the outstanding principal balance of such Mortgage Loan resulting from a Deficient Valuation or a modification of such Mortgage Loan pursuant to the terms and provisions of this Agreement that occurred on or prior to

 

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the Determination Date for the most recent Distribution Date coinciding with or preceding such date of determination.

 

With respect to any REO Mortgage Loan, as of any date of determination, an amount equal to (x) the Stated Principal Balance of the predecessor Mortgage Loan as of the date of the related REO Acquisition, minus (y) the sum of:

 

(i)                the principal portion of any P&I Advance made with respect to such REO Loan for each Distribution Date coinciding with or preceding such date of determination; and

 

(ii)               the principal portion of all Insurance and Condemnation Proceeds, Liquidation Proceeds and REO Revenues received with respect to such REO Loan on or prior to the Determination Date for the most recent Distribution Date coinciding with or preceding such date of determination.

 

A Mortgage Loan or an REO Mortgage Loan shall be deemed to be part of the Trust Fund and to have an outstanding Stated Principal Balance until the Distribution Date on which the payments or other proceeds, if any, received in connection with a Liquidation Event in respect thereof are to be (or, if no such payments or other proceeds are received in connection with such Liquidation Event, would have been) distributed to Certificateholders.

 

With respect to each Companion Loan on any date of determination, the Stated Principal Balance shall equal the unpaid principal balance of such Companion Loan as of such date. On any date of determination, the Stated Principal Balance of each Whole Loan shall be the sum of the Stated Principal Balances of the related Mortgage Loan and any related Companion Loans on such date.

 

With respect to any REO Loan that is a successor to a Companion Loan as of any date of determination, the Stated Principal Balance shall equal (x) the Stated Principal Balance of the predecessor Companion Loan as of the date of the related REO Acquisition, minus (y) the principal portion of any amounts allocable to the related Companion Loan in accordance with the related Intercreditor Agreement.

 

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

 

Subordinate Certificate”: Any Class A-S, Class B, Class C, Class D, Class E, Class F-RR, Class G-RR, Class J-RR or Class NR-RR Certificate, as the case may be.

 

Subordinate Companion Holder”: The holder of any Subordinate Companion Loan.

 

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Subordinate Companion Loan”: Each Companion Loan that is identified as a “Subordinate Companion Loan” in the “Whole Loan” chart in the Preliminary Statement.

 

Subsequent Third-Party Purchaser”: A “third party purchaser” (as defined in the Credit Risk Retention Rules) for so long as it holds all or any portion of the HRR Certificates.

 

Sub-Servicer”: Any Person that services Mortgage Loans on behalf of the Master Servicer, the Special Servicer or an Additional Servicer and is responsible for the performance (whether directly or through Sub-Servicers or Subcontractors) of a substantial portion of the material servicing functions to be performed by the Master Servicer, the Special Servicer or an Additional Servicer under this Agreement, with respect to some or all of the Mortgage Loans that are identified in Item 1122(d) of Regulation AB.

 

Sub-Servicing Agreement”: The written contract between the Master Servicer or the Special Servicer and any Sub-Servicer relating to servicing and administration of Mortgage Loans as provided in Section 3.20.

 

Substitution Shortfall Amount”: With respect to a substitution pursuant to Section 2.03(b), an amount equal to the excess, if any, of the Purchase Price of the Mortgage Loan being replaced calculated as of the date of substitution over the Stated Principal Balance of the related Qualified Substitute Mortgage Loan after application of all scheduled payments of principal and interest due during or prior to the month of substitution. If one or more Qualified Substitute Mortgage Loans are substituted (at the same time by the same Mortgage Loan Seller) for one or more removed Mortgage Loans, the Substitution Shortfall Amount shall be determined as provided in the preceding sentence on the basis of the aggregate Purchase Prices of the Mortgage Loan(s) being replaced and the aggregate Stated Principal Balances of the related Qualified Substitute Mortgage Loan(s).

 

Surviving Entity”: As defined in Section 6.03(b).

 

Tax Returns”: The federal income tax returns on (i) Internal Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed on behalf of each Trust REMIC due to its respective classification as a REMIC under the REMIC Provisions and (ii) Internal Revenue Service Form 1041 or Internal Revenue Service Form 1099, as applicable, or any successor forms to be filed on behalf of the Grantor Trust, together with any and all other information, reports or returns that may be required to be furnished to the Certificateholders or filed with the Internal Revenue Service or any other governmental taxing authority under any applicable provisions of federal tax law or Applicable State and Local Tax Law.

 

Temporary Regulation S Book-Entry Certificate”: As defined in Section 5.02(a).

 

Test”: As defined in Section 12.01(b)(iv).

 

The Westchester Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of February 12, 2020, by and between the holders of the respective promissory notes

 

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evidencing The Westchester Whole Loan, setting forth the respective rights of such holders, as the same may be amended in accordance with the terms thereof.

 

Transfer”: Any direct or indirect transfer, sale, pledge, hypothecation, or other form of assignment of any Ownership Interest in a Certificate.

 

Transfer Restriction Period”: The period from the Closing Date to the earliest of:

 

(a)                the latest of (i) the date on which the aggregate unpaid principal balance of all outstanding Mortgage Loans has been reduced to 33.0% of the aggregate Cut-off Date Principal Balance of the Mortgage Loans; (ii) the date on which the aggregate outstanding principal balance of the Principal Balance Certificates has been reduced to 33.0% of the aggregate outstanding principal balance of the Principal Balance Certificates as of the Closing Date; or (iii) two years after the Closing Date;

 

(b)               subject to the consent of the Retaining Sponsor (which may not be unreasonably withheld, delayed or conditioned), the date on which the Credit Risk Retention Rules have been officially abolished or officially determined by the OCC, the Board of Governors of the Federal Reserve System, the FDIC, the Federal Housing Finance Agency, the Commission and the Department of Housing and Urban Development to be no longer applicable to the Trust or the HRR Certificates; provided that such restrictions shall also expire on the date on which all Mortgage Loans have been defeased in accordance with the risk retention requirements set forth in the Credit Risk Retention Rule; and

 

(c)                with respect to the HRR Certificates only, the date on which all of the Mortgage Loans have been defeased in accordance with the risk retention requirements set forth in §244.7(b)(8)(i) of the Risk Retention Rule;

 

provided that the termination of the Transfer Restriction Period shall not be effective without the written consent of the Retaining Sponsor.

 

Transferable Servicing Interest”: The amount by which the Servicing Fee otherwise payable to the Master Servicer hereunder exceeds the sum of (i) the Primary Servicing Fee and (ii) the amount of the Servicing Fee calculated using the Retained Fee Rate, which is subject to reduction by the Trustee pursuant to Section 3.11(a) of this Agreement.

 

Transferee”: Any Person who is acquiring by Transfer any Ownership Interest in a Certificate.

 

Transferee Affidavit”: As defined in Section 5.03(p)(ii).

 

Transferor”: Any Person who is disposing by Transfer any Ownership Interest in a Certificate.

 

Transferor Letter”: As defined in Section 5.03(p)(ii).

 

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Trust”: The trust created hereby and to be administered hereunder. The Trust shall be named: “3650R 2021-PF1 Commercial Mortgage Trust”.

 

Trust Fund”: The corpus of the Trust created hereby and to be administered hereunder, consisting of: (i) such Mortgage Loans as from time to time are subject to this Agreement (including any Qualified Substitute Mortgage Loan replacing a removed Mortgage Loan), together with the Mortgage Files relating thereto (subject to, in the case of a Serviced Whole Loan, the interests of the related Serviced Companion Noteholder in the related Mortgage File); (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut-off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (to the extent of the Trust’s interest therein) or the Trust’s beneficial interest in the Mortgaged Property securing a Non-Serviced Whole Loan acquired under the related Non-Serviced PSA; (iv) all revenues received in respect of any REO Property (to the extent of the Trust’s interest therein); (v) the Master Servicer’s, the Special Servicer’s, the Certificate Administrator’s and the Trustee’s rights under the Insurance Policies with respect to the Mortgage Loans required to be maintained pursuant to this Agreement and any proceeds thereof (to the extent of the Trust’s interest therein); (vi) any Assignment of Leases and any security agreements (to the extent of the Trust’s interest therein); (vii) any letters of credit, indemnities, guaranties or lease enhancement policies given as additional security for any related Mortgage Loans (to the extent of the Trust’s interest therein); (viii) all assets deposited in the Loss of Value Reserve Fund and the Servicing Accounts (to the extent of the Trust’s interest therein), amounts on deposit in the Collection Account (to the extent of the Trust’s interest therein), the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Excess Interest Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account (to the extent of the Trust’s interest in such Gain-on-Sale Reserve Account) and any REO Account (to the extent of the Trust’s interest in such REO Account), including any reinvestment income; (ix) any Environmental Indemnity Agreements (to the extent of the Trust’s interest therein); (x) the rights and remedies of the Depositor under each Mortgage Loan Purchase Agreement (to the extent transferred to the Trustee); (xi) the Lower-Tier Regular Interests; (xii) the Westchester Loan REMIC Regular Interest; and (xiii) the proceeds of the foregoing (other than any interest earned on deposits in the lock-box accounts, cash collateral accounts, escrow accounts and any reserve accounts, to the extent such interest belongs to the related Mortgagor).

 

Trust REMIC”: As defined in the Preliminary Statement.

 

Trustee”: Wells Fargo Bank, National Association, or its successor in interest, in its capacity as trustee and its successors in interest, or any successor trustee appointed as herein provided (including any agents or affiliates, as applicable, utilized hereby). Wells Fargo Bank, National Association shall perform the trustee role through its Corporate Trust Services division.

 

UCC”: The Uniform Commercial Code, as enacted in each applicable state (and, if applicable, the District of Columbia).

 

UCC Financing Statement”: A financing statement prepared and filed pursuant to the UCC, as in effect in the relevant jurisdiction.

 

Underwriters”: Citigroup Global Markets Inc. and Deutsche Bank Securities Inc.

 

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Uninsured Cause”: Any cause of damage to property subject to a Mortgage such that the complete restoration of such property is not fully reimbursable by the hazard Insurance Policies or flood Insurance Policies required to be maintained pursuant to Section 3.07.

 

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

 

Unliquidated Advance”: Any Advance previously made by a party hereto that has been previously reimbursed, as between the Person that made the Advance hereunder, on the one hand, and the Trust, on the other, as part of a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise from collections on or the proceeds of the related Mortgage Loan or REO Property in respect of which the Advance was made.

 

Unscheduled Principal Distribution Amount”: With respect to any Distribution Date, the aggregate of the following: (a) all Principal Prepayments received on the Mortgage Loans during the applicable one-month period ending on the related Determination Date (or, in the case of a Non-Serviced Mortgage Loan, received by the Master Servicer during such period as would allow inclusion in the Available Funds for such Distribution Date) and (b) the principal portions of all Liquidation Proceeds, Insurance and Condemnation Proceeds and, if applicable, REO Revenues received with respect to such Mortgage Loan and any REO Properties during the applicable one-month period ending on the related Determination Date (or, in the case of a Non-Serviced Mortgage Loan, received by the Master Servicer during such period as would allow inclusion in the Available Funds for such Distribution Date), but in each case only to the extent that such principal portion represents a recovery of principal for which no advance was previously made pursuant to Section 4.03 in respect of a preceding Distribution Date; provided that all such Liquidation Proceeds and Insurance and Condemnation Proceeds shall be reduced by any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees payable as of the date of receipt of such proceeds, any amount related to the Loss of Value Payments to the extent that such amount was transferred into the Collection Account during the applicable one-month period ending on the related Determination Date, accrued interest on Advances and other additional Trust Fund expenses incurred in connection with the related Mortgage Loan and payable as of the date of receipt of such proceeds, thus reducing the Unscheduled Principal Distribution Amount.

 

Unsolicited Information”: As defined in Section 12.01(b)(iii).

 

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

 

Upper-Tier REMIC Distribution Account”: The segregated account or accounts (or a subaccount of the Distribution Account) created and maintained by the Certificate Administrator (on behalf of the Trustee) pursuant to Section 3.04(b) in trust for the Certificateholders, which shall initially be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wells Fargo Bank, National Association, as Trustee, for the registered Holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage

 

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Pass-Through Certificates, Series 2021-PF1, Upper-Tier REMIC Distribution Account”. Any such account or accounts shall be an Eligible Account.

 

U.S. Dollars” or “$”: Lawful money of the United States of America.

 

U.S. Tax Person”: A citizen or resident of the United States, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) or other entity created or organized in, or under the laws of, the United States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, an estate whose income is subject to United States federal income tax regardless of its source or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Tax 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 U.S. Tax Persons).

 

Voting Rights”: The portion of the voting rights of all of the Certificates that is allocated to any Certificate. At all times during the term of this Agreement, the Voting Rights shall be allocated among the various Classes of Certificateholders as follows: (i) 0% in the case of the Class Z and Class R Certificates, (ii) 2% in the case of each Class of Class X Certificates, allocated pro rata, based upon their respective Notional Amounts as of the date of determination and (iii) in the case of any Class of Principal Balance Certificates (or, with respect to a vote of Non-Reduced Certificates, in the case of any Class of Non-Reduced Certificates), a percentage equal to the product of 98% and a fraction, the numerator of which is equal to the Certificate Balance (and solely in connection with any vote for purposes of determining whether to remove the Special Servicer pursuant to Section 7.01(d) or the Operating Advisor pursuant to Section 3.26(i) or Section 3.26(j), taking into account any notional reduction in the Certificate Balance for Cumulative Appraisal Reduction Amounts allocated to the Principal Balance Certificates pursuant to Section 4.05(a)) of such Class, in each case, determined as of the Distribution Date immediately preceding such time, and the denominator of which is equal to the aggregate Certificate Balance (and solely in connection with any vote for purposes of determining whether to remove the Special Servicer pursuant to Section 7.01(d) or the Operating Advisor pursuant to Section 3.26(i), taking into account any notional reduction in the Certificate Balance for Cumulative Appraisal Reduction Amounts allocated to the Principal Balance Certificates pursuant to Section 4.05(a)) of the Principal Balance Certificates (or, if with respect to a vote of Non-Reduced Certificates, the aggregate of the Certificate Balances of all Classes of the Non-Reduced Certificates), each determined as of the Distribution Date immediately preceding such time. The Voting Rights of any class of certificates shall be allocated among Certificateholders of such class in proportion to their respective Percentage Interests. None of the Class R or Class Z Certificates will be entitled to any Voting Rights.

 

WAC Rate”: With respect to any Distribution Date, the weighted average of the applicable Net Mortgage Rates of the Mortgage Loans (including any Non-Serviced Mortgage Loans) and REO Mortgage Loans as of the first day of the related Collection Period, weighted on the basis of their respective Stated Principal Balances immediately following the preceding Distribution Date (or, in the case of the initial Distribution Date, as of the Closing Date); provided, however, that in the case of The Westchester Mortgage Loan held by the Westchester Loan

 

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REMIC, “Mortgage Loan” shall refer to the Westchester Loan REMIC Regular Interest for purposes of this definition.

 

Westchester Companion Loans”: With respect to The Westchester Mortgage Loan, the Companion Loans evidenced by the Notes identified in the table under the heading “Whole Loans” in the Preliminary Statement hereto as being related to The Westchester Mortgage Loan, which Notes are made by the related Mortgagor and secured by the Mortgage on the Westchester Mortgaged Property, and which are not included in the Trust.

 

Westchester Loan REMIC”: A segregated asset pool designated as a REMIC pursuant to the related Loan REMIC Declaration consisting of The Westchester Mortgage Loan and the Westchester Loan REMIC Pari Passu Notes, collections thereon, any related REO Property acquired in respect thereof and all proceeds of such REO Property, other property related thereto, and amounts received in respect thereof from time to time.

 

Westchester Loan REMIC Pari Passu Notes”: With respect to The Westchester Whole Loan, those certain promissory notes A-2-A in the original principal amount of $35,000,000, A-2-B in the original principal amount of $20,000,000 and A-3-A in the original principal amount of $50,000,000, which evidence three of the Westchester Companion Loans and are not assets of the Trust Fund, as the same may hereafter be amended, restated, replaced, extended, renewed, supplemented, consolidated, severed, split or otherwise modified.

 

Westchester Loan REMIC Regular Interests”: With respect to the Westchester Loan REMIC, the uncertificated “regular interests”, within the meaning of Section 860G(a)(1) of the Code, in the Westchester Loan REMIC and as set forth in the Westchester Loan REMIC Declaration. For the avoidance of doubt, the principal balance of the Westchester Loan REMIC Regular Interests shall at all times equal the combined outstanding Stated Principal Balance of The Westchester Mortgage Loan and the Westchester Loan REMIC Pari Passu Notes (or, if applicable, the deemed Stated Principal Balance of any successor REO Loan). The interest rate on the Westchester Loan REMIC Regular Interests shall be the Mortgage Rate of The Westchester Mortgage Loan. Payments and other collections of amounts received on or in respect of The Westchester Mortgage Loan and the Westchester Loan REMIC Pari Passu Notes (or any related REO Property) shall be deemed distributable on the Westchester Loan REMIC Regular Interests to the extent of the principal, interest at the related Mortgage Rate and Yield Maintenance Charges due thereon.

 

Westchester Loan REMIC Regular Interest”: The approximately 26.667% ownership interest in one of the Westchester Loan REMIC Regular Interests designated as the “A-2 Regular Interest” in the Westchester Loan REMIC Declaration, evidenced by the Westchester Mortgage Loan. The Westchester Loan REMIC Regular Interest shall be an asset of the Lower-Tier REMIC.

 

Whole Loan”: With respect to any Mortgage Loan with a related Companion Loan, such Mortgage Loan and its related Companion Loan(s), collectively, as identified in the “Whole Loan” chart in the Preliminary Statement. With respect to each Whole Loan, references herein to each such Whole Loan shall be construed to refer to the aggregate indebtedness under the related Mortgage Loan and the related Companion Loan(s).

 

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Withheld Amounts”: As defined in Section 3.21(a).

 

Workout-Delayed Reimbursement Amounts”: With respect to any Mortgage Loan, the amount of any Advances made with respect to such Mortgage Loan on or before the date such Mortgage Loan becomes (or, but for the making of three Periodic Payments under its modified terms, would then constitute) a Corrected Loan, together with (to the extent accrued and unpaid) interest on such Advances, to the extent that (i) such Advance (and accrued and unpaid interest thereon) is not reimbursed to the Person who made such Advance on or before the date, if any, on which such Mortgage Loan becomes a Corrected Loan and (ii) the amount of such Advance (and accrued and unpaid interest thereon) becomes an obligation of the related Mortgagor to pay such amount under the terms of the modified loan documents. That any amount constitutes all or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner limit the right of any Person hereunder to determine in the future that such amount instead constitutes a Nonrecoverable Advance.

 

Workout Fee”: The fee paid to the Special Servicer with respect to each Corrected Loan in accordance with Section 3.11(c).

 

Workout Fee Rate”: With respect to each Corrected Loan, a rate equal to the lesser of (a) 1.0% of each collection (other than Penalty Charges and Excess Interest) of interest and principal (other than any amount for which a Liquidation Fee would be paid), including (i) Periodic Payments, (ii) Balloon Payments, (iii) Principal Prepayments and (iv) payments at maturity or on the Anticipated Repayment Date, received on each Corrected Loan for so long as it remains a Corrected Loan and (b) such lower rate as would result in a Workout Fee of $1,000,000 (or, if the rate in clause (a) above would result in a Workout Fee that would be less than $25,000 when applied to each expected payment of principal and interest (other than default interest) on any Mortgage Loan or Whole Loan that becomes a Corrected Loan through and including the then related maturity date, then the Workout Fee Rate shall be a rate equal to such higher rate as would result in a Workout Fee equal to $25,000 when applied to each expected payment of principal and interest (other than default interest) on such Mortgage Loan or Whole Loan through and including the then related maturity date).

 

Yield Maintenance Charge”: With respect to any Mortgage Loan or REO Mortgage Loan, the yield maintenance charge or prepayment premium set forth in the related Mortgage Loan documents.

 

YM Group A”: As defined in Section 4.01(d).

 

YM Group B”: As defined in Section 4.01(d).

 

YM Groups”: As defined in Section 4.01(d).

 

Section 1.02        Certain Calculations. Unless otherwise specified herein, for purposes of determining amounts with respect to the Certificates and the rights and obligations of the parties hereto, the following provisions shall apply:

 

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(i)               All calculations of interest (other than as provided in the related Mortgage Loan documents) provided for herein shall be made on the basis of a three hundred sixty (360) day year consisting of twelve (12) 30-day months.

 

(ii)              Any Mortgage Loan or Companion Loan payment is deemed to be received on the date such payment is actually received by the Master Servicer or the Special Servicer; provided, however, that for purposes of calculating distributions on the Certificates, Principal Prepayments with respect to any Mortgage Loan are deemed to be received on the date they are applied in accordance with the Servicing Standard consistent with the terms of the related Mortgage Note and Mortgage to reduce the outstanding principal balance of such Mortgage Loan on which interest accrues.

 

(iii)             Any reference to the Certificate Balance of any Class of Principal Balance Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Principal Balance Certificates on such Distribution Date after giving effect to (a) any distributions made with respect to such Class of Principal Balance Certificates on such Distribution Date pursuant to Section 4.01(a), (b) any Realized Losses allocated to such Class of Principal Balance Certificates on that Distribution Date pursuant to Section 4.04, and (c) any recoveries on the related Mortgage Loans of Nonrecoverable Advances (plus interest thereon) that were previously reimbursed from principal collections on the related Mortgage Loans, that resulted in a reduction of the Principal Distribution Amount, which recoveries are allocated to such Class of Principal Balance Certificates, and added to the Certificate Balance pursuant to Section 4.04.

 

(iv)             All net present value calculations and determinations made with respect to a Mortgage Loan, Serviced Companion Loan, Mortgaged Property or REO Property (including for purposes of the definition of “Servicing Standard”) shall be made, if the Mortgage Loan documents are silent, using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Companion Loan, as applicable, or sale of a Defaulted Loan, by the Special Servicer, the highest of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the related Mortgagor(s) on similar non-defaulted debt of such Mortgagor(s) as of such date of determination, (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Companion Loan, as applicable, based on its outstanding principal balance and (z) the yield on 10-year U.S. treasuries as of such date of determination, and (b) for all other cash flows, including property cash flow, the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property.

 

(v)              Any reference to “expense of the trust” or “additional trust fund expense” or words of similar import shall be construed to mean, for any Serviced Mortgage Loan, an expense that shall be applied in accordance with the related Intercreditor Agreement or, if no application is specified in the related Intercreditor Agreement, then, to the extent such Intercreditor Agreement refers to this Agreement for the application of trust expenses or such Intercreditor Agreement does not prohibit the following application of trust expenses (i) with respect to any Serviced Pari Passu Whole Loan, pro rata and pari passu, to the Trust and Serviced Pari Passu Companion Loan in accordance with the respective stated principal balances of the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu

 

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Companion Loan or (ii) with respect to any AB Whole Loan, first, to the related Subordinate Companion Loan and then, to the Trust (and any Pari Passu Companion Loan(s), on a pro rata basis).

 

Section 1.03        Certain Constructions. For purposes of this Agreement, references to the most or next most subordinate Class of Certificates outstanding at any time shall mean the most or next most subordinate Class of Certificates then outstanding as among the Class A-1, Class A-3, Class A-SB, Class A-4, Class A-5, Class A-S, Class B, Class C, Class D, Class E, Class F-RR, Class G-RR, Class J-RR and Class NR-RR Certificates. For purposes of this Agreement, (i) each Class of Principal Balance Certificates shall be deemed to be outstanding only to the extent its respective Certificate Balance has not been reduced to zero, (ii) the Class Z Certificates shall be outstanding so long as any ARD Loan is outstanding, (iii) the Class R Certificates shall be outstanding so long as the Trust Fund has not been terminated pursuant to Section 9.01 or any other Class of Certificates remains outstanding and (iv) each of the Class X Certificates shall be deemed to be outstanding until their respective Notional Amounts have been reduced to zero.

 

Notwithstanding anything to the contrary contained herein, for purposes of this Agreement, each reference to any action by the Master Servicer or the Special Servicer that is subject to the consent or approval of the Directing Holder, or consultation with the Directing Holder or the Operating Advisor, is in each case further subject to the determination by the Master Servicer or the Special Servicer that taking or refraining from taking the action as proposed by the Directing Holder or the Operating Advisor or not taking such action as proposed by the Master Servicer or the Special Servicer if the Directing Holder fails to grant its consent or approval, or if the Directing Holder or the Operating Advisor, as applicable, fail to express their concurrence, to any action proposed to be taken by the Master Servicer or the Special Servicer, in each case, is consistent with the Servicing Standard. In each case, (a) if the response by the Directing Holder or the Operating Advisor hereunder is inconsistent with the Servicing Standard, the Master Servicer or the Special Servicer shall take such action as is consistent with the Servicing Standard, and (b) if the Master Servicer or the Special Servicer determines that immediate action is necessary to protect the interests of the Certificateholders and, in the case of any Serviced Whole Loan, the related Serviced Companion Loan Noteholders (as a collective whole as if such Certificateholders and Serviced Companion Loan Noteholders, as applicable, constituted a single lender (and with respect to any Serviced AB Whole Loan, taking into account the subordinate nature of such Subordinate Companion Loan(s))), and the Master Servicer or the Special Servicer, as applicable, has made a reasonable effort to contact the nonresponsive party, it may take such action without waiting for a response from such nonresponsive party; provided that the Special Servicer or Master Servicer, as applicable, shall provide the nonresponsive party with prompt written notice following such action including a reasonably detailed explanation of the basis for such action.

 

With respect to each Whole Loan, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the related Intercreditor Agreement controls; provided that in no event shall the Master Servicer or the Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause the Master Servicer or the Special Servicer, as the case may be, to violate the Servicing Standard or the REMIC Provisions.

 

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[End of ARTICLE I]

 

Article II

CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES

 

Section 2.01        Conveyance of Mortgage Loans. (a)  The Depositor, concurrently with the execution and delivery hereof, does hereby establish a trust, appoint the Trustee as trustee of the trust, assign, sell, transfer and convey to the Trustee, in trust, without recourse, for the benefit of the Certificateholders (including the Westchester Loan REMIC Regular Interest) and the Trustee (as holder of the Lower-Tier Regular Interests and the Westchester Loan REMIC Regular Interest) all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections 1, 2, 3, 4, 5 (excluding Section 5(e) and 5(f)), 6(a) (excluding clauses (viii), (ix) and (x) of Section 6(a)), 6(c), 6(e), 6(g), 6(h), 6(i), 11, 12, 16, 17, 18, 19, 20, 21 and 22 of each of the Mortgage Loan Purchase Agreements and Section 24 of the Mortgage Loan Purchase Agreement among the Depositor and 3650 REIT, (iii) the Intercreditor Agreements, and (iv) all other assets included or to be included in the Trust Fund (including the Westchester Loan REMIC Regular Interest). Such assignment includes all interest and principal received or receivable on or with respect to the Mortgage Loans (in each case, other than (i) payments of principal and interest due and payable on the Mortgage Loans on or before the Cut-off Date; (ii) prepayments of principal collected on or before the Cut-off Date; (iii) with respect to those Mortgage Loans that have their first Due Date after November 2021, any interest amounts relating to the period prior to the Cut-off Date); and (iv) any Loan Seller Defeasance Rights and Obligations with respect to the Mortgage Loans. The transfer of the Mortgage Loans and the related rights and property accomplished hereby is absolute and, notwithstanding Section 13.07, is intended by the parties to constitute a sale. In connection with the assignment to the Trustee of Sections 1, 2, 3, 4, 5 (excluding Section 5(e) and 5(f), 6(a) (excluding clauses (viii), (ix) and (x) of Section 6(a)), 6(c), 6(e), 6(g), 6(h), 6(i), 11, 12, 16, 17, 18, 19, 20, 21 and 22 of each of the Mortgage Loan Purchase Agreements and Section 24 of the Mortgage Loan Purchase Agreement among the Depositor and 3650 REIT, it is intended that the Trustee get the benefit of Sections 11, 12 and 17 thereof in connection with any exercise of rights under the assigned Sections, and the Depositor shall use its best efforts to make available to the Trustee the benefits of Sections 11, 12 and 17 in connection therewith.

 

(b)               In connection with the Depositor’s assignment pursuant to subsection (a) above, the Depositor shall direct, and hereby represents and warrants that it has directed, the Mortgage Loan Sellers pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with, the Custodian (or with respect to letters of credit, the Master Servicer), on or before the Closing Date, the Mortgage File for each Mortgage Loan so assigned, with copies to the Master Servicer (except, in the case of Serviced Mortgage Loans, for letters of credit, which are to be originals); provided, however, that copies of any document in the Mortgage File that also constitutes a Designated Servicing Document shall be delivered to the Master Servicer (other than with respect to a Non-Serviced Mortgage Loan) on or before the Closing Date. If the applicable Mortgage Loan Seller cannot deliver, or cause to be

 

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delivered, as to any Mortgage Loan, the original Mortgage Note, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been satisfied upon such Mortgage Loan Seller’s delivery of a copy or duplicate original of such Mortgage Note, together with an affidavit certifying that the original thereof has been lost or destroyed and indemnifying the Trustee and the Trust. If the applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents and/or instruments referred to in clauses (ii), (iv), (vii) (if recorded), (ix) and (x) of the definition of “Mortgage File” (or, if applicable, a copy thereof) 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, or will be delivered within ten (10) Business Days of the Closing Date, for filing or recordation, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been satisfied on a provisional basis as of the Closing 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 the applicable Mortgage Loan Seller to be a true and complete copy of the original thereof submitted or to be submitted for filing or recording) is delivered to the Custodian on or before the Closing Date, and either the original of such non-delivered document or instrument, or a photocopy thereof (certified by the appropriate county recorder’s office or the applicable title insurance company, in the case of the documents and/or instruments referred to in clause (ii) of the definition of “Mortgage File”, 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 one hundred-eighty (180) days of the Closing Date (or within such longer period, not to exceed eighteen (18) months, after the Closing Date as the Custodian shall consent to as long as the applicable Mortgage Loan Seller is, as certified in writing to the Trustee and the Custodian no less often than every ninety (90) days following such 180–day period after the Closing Date, attempting in good faith to obtain from the appropriate public filing office or county recorder’s office such original or photocopy). If the applicable Mortgage Loan Seller is required to, but cannot, deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents and/or instruments referred to in clauses (ii), (iv), (vii) (if recorded), (ix) and (x) (or, if applicable, a copy thereof) of the definition of “Mortgage File,” with evidence of filing or recording thereon (if intended to be recorded or filed), for any other reason, including, without limitation, that such non-delivered document or instrument has been lost or destroyed, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been satisfied 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 photocopy of such non-delivered document or instrument (with evidence of filing or recording thereon and certified in the case of the documents and/or instruments referred to in clause (ii) of the definition of “Mortgage File” by the appropriate county recorder’s office or the applicable title insurance company to be a true and complete copy of the original thereof submitted for recording) is delivered to the Custodian on or before the Closing Date.

 

Neither the Trustee nor any Custodian will in any way be liable for any failure by any Mortgage Loan Seller or the Depositor to comply with the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b). If, on the Closing Date as to any Mortgage Loan, subject to the next sentence, the applicable Mortgage Loan Seller is required to,

 

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but cannot, deliver (in complete and recordable form or form suitable for filing or recording, if applicable) any one of the assignments in favor of the Trustee referred to in clause (iii), clause (v) (to the extent not already assigned pursuant to clause (iii)) or clause (x) of the definition of “Mortgage File” solely because of the unavailability of filing or recording information as to any existing document or instrument, such Mortgage Loan Seller may provisionally satisfy the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) with respect to such assignment by delivering with respect to such Mortgage Loan on the Closing Date an omnibus assignment substantially in the form of Exhibit H; provided that all required original assignments with respect to such Mortgage Loan, (in fully complete and recordable form or form suitable for filing or recording, if applicable) are delivered to the Custodian within one hundred-eighty (180) days after the Closing Date (or within such longer period, not to exceed eighteen (18) months, which the Custodian shall consent to so long as the applicable Mortgage Loan Seller is, as certified in writing to the Trustee and the Custodian no less often than every ninety (90) days following such 180–day period after the Closing Date, attempting in good faith to obtain from the appropriate public filing office or county recorder’s office the applicable filing or recording information as to the related document or instrument); and provided, further, that in the case of a Non-Serviced Mortgage Loan, the delivery of any such assignments shall be subject to clause (e) and clause (f) of the final proviso to the definition of “Mortgage File” herein.

 

If, in accordance with the related Mortgage Loan Purchase Agreement and consistent with Section 2.01(c), as to any Mortgage Loan, the related Mortgage Loan Seller or its agent is responsible for recording or filing, as applicable, any one of the assignments in favor of the Trustee referred to in clause (iii), clause (v) (to the extent not already assigned pursuant to clause (iii)) or clause (x) of the definition of “Mortgage File”, such Mortgage Loan Seller may provisionally satisfy the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) with respect to such assignment by delivering to the Custodian with respect to such Mortgage Loan on the Closing Date a copy of such assignment in the form sent for recording or filing or (except for recording or filing information not yet available) to be sent for recording or filing; provided that an original or copy of such assignment (with evidence of recording or filing, as applicable, indicated thereon) shall be delivered to the Custodian as contemplated by Section 2.01(c).

 

Notwithstanding anything herein to the contrary, with respect to letters of credit referred to in clause (xii) of the definition of “Mortgage File” and relating to a Serviced Mortgage Loan, the applicable Mortgage Loan Seller shall deliver the original to the Master Servicer (which letter of credit shall be titled in the name of, or assigned to, “Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, on behalf of Wells Fargo Bank, National Association, as Trustee, for the benefit of registered holders of 3650R 2021-PF1 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2021-PF1”, and a copy to the Custodian or, if such original has been submitted by the applicable Mortgage Loan Seller to the issuing bank to effect a reissuance, assignment or amendment of such letter of credit (changing the beneficiary thereof to the Master Servicer (in care of the Trustee, as titled above) that may be required in order for the Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents, as applicable) and the applicable Mortgage Loan Seller shall be deemed to have satisfied the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) by delivering with respect to any letter(s) of credit a copy thereof to the Custodian together with an

 

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officer’s certificate of the applicable Mortgage Loan Seller certifying that such document has been delivered to the issuing bank for reissuance or an Officer’s Certificate from the Master Servicer certifying that it holds the letter(s) of credit pursuant to this Section 2.01(b), one of which shall be delivered to the Custodian on the Closing Date. If a letter of credit referred to in the previous sentence is not in a form that would allow the Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents, the applicable Mortgage Loan Seller shall deliver the appropriate assignment or amendment documents (or copies of such assignment or amendment documents if the related Mortgage Loan Seller has submitted the originals to the related issuer of such letter of credit for processing) to the Custodian within thirty (30) days of the Closing Date. If not otherwise paid by the related Mortgagor, the applicable Mortgage Loan Seller shall pay any costs of assignment or amendment of such letter(s) of credit required in order for the Master Servicer to draw on such letter(s) of credit on behalf of the Trust and shall cooperate with the reasonable requests of the Master Servicer in connection with effectuating a draw under any such letter of credit prior to the date such letter of credit is assigned or amended in order that it may be drawn by the Master Servicer on behalf of the Trust.

 

(c)                Pursuant to each Mortgage Loan Purchase Agreement, except in the case of a Non-Serviced Mortgage Loan, the related Mortgage Loan Seller is required at its sole cost and expense, to itself, or to engage a third party to, put each Assignment of Mortgage, each assignment of Assignment of Leases and each assignment of each UCC Financing Statement (collectively, the “Assignments” and, individually, “Assignment”) relating to the Mortgage Loans conveyed by it under the applicable Mortgage Loan Purchase Agreement in proper form for filing or recording, as applicable, and to submit such Assignments for filing or recording, as the case may be, in the applicable public filing or recording office. On the Closing Date, the Mortgage Loan Sellers may deliver one (1) omnibus assignment for all such Mortgage Loans substantially in the form of Exhibit H to the Custodian as provided in Section 2.01(b). Except under the circumstances provided for in the last sentence of this subsection (c) and except in the case of a Non-Serviced Mortgage Loan, the related Mortgage Loan Seller will itself, or a third party at such Mortgage Loan Seller’s expense will, promptly (and in any event within one hundred-twenty (120) days after the later of the Closing Date and the related Mortgage Loan Seller’s actual receipt of the related documents and the necessary recording and filing information) cause to be submitted for recording or filing, as the case may be, in the appropriate public office for real property records or UCC Financing Statements, as appropriate, each Assignment. Each such Assignment submitted for recording shall reflect that it (or a file copy thereof in the case of a UCC Assignment) should be returned by the public recording office to the Custodian or its designee following recording or filing (or to the related Mortgage Loan Seller or its agent who will then be responsible for delivery of the same to the Custodian or its designee). Any such Assignment received by the Custodian shall be promptly included in the related Mortgage File and be deemed a part thereof, and any such Assignment received by the related Mortgage Loan Seller or its agent shall be required to be delivered to the Custodian to be included as part of the related Mortgage File within thirty (30) days after receipt. If any such document or instrument is determined to be incomplete or not to meet the recording or filing requirements of the jurisdiction in which it is to be recorded or filed, or is lost by the public office or returned unrecorded or unfiled, as the case may be, because of a defect therein, on or about one hundred-eighty (180) days after the Closing Date, the related Mortgage Loan Seller or its designee shall prepare, at its own expense, a substitute therefor or cure such defect, as the case may be, and thereafter the related Mortgage Loan Seller or its designee

 

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shall, at the expense of such Mortgage Loan Seller, upon receipt thereof cause the same to be duly recorded or filed, as appropriate. If, by the first anniversary of the Closing Date, the Custodian has not received confirmation of the recording or filing as the case may be, of any such Assignment, it shall so advise the related Mortgage Loan Seller who may then pursue such confirmation itself or request that the Custodian pursue such confirmation at the related Mortgage Loan Seller’s expense, and upon such a request and provision for payment of such expenses satisfactory to the Custodian, the Custodian, at the expense of the applicable Mortgage Loan Seller, shall cause a search of the land records of each applicable jurisdiction and of the records of the offices of the applicable Secretary of State for confirmation that the Assignment appears in such records and retain a copy of such confirmation in the related Mortgage File. If confirmation of the recording or filing of an Assignment cannot be obtained, the Custodian or the related Mortgage Loan Seller, as applicable, shall promptly inform the other and the Custodian shall provide such Mortgage Loan Seller with a copy of the Assignment and request the preparation of a new Assignment. The related Mortgage Loan Seller shall pay the expenses for the preparation of replacement Assignments for any Assignments which, having been properly submitted for filing or recording to the appropriate governmental office by the Custodian, fail to appear of record and must be resubmitted. Notwithstanding the foregoing, there shall be no requirement to record any assignment to the Trustee referred to in clause (iii) or (v) of the definition of “Mortgage File,” or to file any UCC-3 to the Trustee referred to in clause (ix) of the definition of “Mortgage File,” in those jurisdictions where, in the written opinion of local counsel (which opinion shall be an expense of the related Mortgage Loan Seller) acceptable to the Depositor and the Trustee, such recordation and/or filing is not required to protect the Trustee’s interest in the related Mortgage Loan, against sale, further assignment, satisfaction or discharge by the related Mortgage Loan Seller, the Master Servicer, the Special Servicer, any Sub-Servicer or the Depositor.

 

(d)               All documents and records in the Depositor’s or the applicable Mortgage Loan Seller’s possession relating to the Mortgage Loans (including, in each case, financial statements, operating statements and any other information provided by the respective Mortgagor from time to time, but excluding the applicable Mortgage Loan Seller’s internal communications (including such communications between such Mortgage Loan Seller and its Affiliates) and underwriting analysis (including documents prepared by the applicable Mortgage Loan Seller or any of its Affiliates for such purposes), draft documents, attorney-client communications that are privileged communications or constitute legal or other due diligence analyses and credit underwriting or due diligence analyses or data) that (i) are not required to be a part of a Mortgage File in accordance with the definition thereof and (ii) are reasonably necessary for the servicing of each such Mortgage Loan, together with copies of all documents in each Mortgage File, shall be delivered by the Depositor or the applicable Mortgage Loan Seller to the Master Servicer within five (5) Business Days after the Closing Date and shall be held by the Master Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders and, if applicable, on behalf of the related Companion Holder. Such documents and records shall be any documents and records (with the exception of any items excluded under the immediately preceding sentence) that would otherwise be a part of the Servicing File.