Contract

Exhibit 99.1 

 

EXECUTION VERSION

 

  

DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION,
Depositor,

 

wells fargo bank, national association,
Master Servicer,

 

LNR Partners, LLC,
Special Servicer,

 

wilmington trust, national association,
Trustee,

 

wells fargo bank, national association,
Certificate Administrator, Paying Agent and Custodian,

 

park bridge lender services llc,
Operating Advisor,

 

and

 

park bridge lender services llc,
Asset Representations Reviewer 

 

 

 POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2017

 

  

CD 2017-CD6 Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 2017-CD6

 

 

 

 

 

TABLE OF CONTENTS 

 

    Page
     
ARTICLE I DEFINITIONS   8
     
Section 1.01 Defined Terms   8
Section 1.02 Certain Calculations   138
Section 1.03 Certain Constructions   143
Section 1.04 Certain Matters Relating to the Non-Serviced Mortgage Loans   144
       
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES   145
     
Section 2.01 Conveyance of Mortgage Loans; Assignment of Mortgage Loan Purchase Agreements   145
Section 2.02 Acceptance by Custodian and the Trustee   156
Section 2.03 Representations, Warranties and Covenants of the Depositor; Repurchase and Substitution of Mortgage Loans   158
Section 2.04 Representations, Warranties and Covenants of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and the Asset Representations Reviewer   176
Section 2.05 Execution and Delivery of Certificates; Issuance of Lower-Tier Regular Interests   185
Section 2.06 Miscellaneous REMIC and Grantor Trust Provisions   186
       
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND   187
     
Section 3.01 The Master Servicer To Act as Master Servicer; Special Servicer To Act as Special Servicer; Administration of the Mortgage Loans and the Serviced Companion Loans   187
Section 3.02 Liability of the Master Servicer and the Special Servicer When Sub- Servicing   193
Section 3.03 Collection of Mortgage Loan and Serviced Companion Loan Payments   194
Section 3.04 Collection of Taxes, Assessments and Similar Items; Escrow Accounts   194
Section 3.05 Collection Accounts; Gain-on-Sale Reserve Account; Distribution Accounts; Interest Reserve Account and Serviced Whole Loan Collection Accounts   197
Section 3.06 Permitted Withdrawals from the Collection Accounts, the Serviced Whole Loan Collection Accounts and the Distribution Accounts; Trust Ledger   206
Section 3.07 Investment of Funds in the Collection Accounts, the Serviced Whole Loan Collection Accounts, the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale Reserve Account, the REO    

 

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  Account, the Lock-Box Accounts, the Cash Collateral Accounts and the Reserve Accounts 227
Section 3.08 Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage 230
Section 3.09 Enforcement of Due-on-Sale Clauses; Assumption Agreements; Defeasance Provisions 235
Section 3.10 Appraisals; Realization upon Defaulted Loans 243
Section 3.11 Custodian to Cooperate; Release of Mortgage Files 251
Section 3.12 Servicing Fees, Certificate Administrator/Trustee Fees and Special Servicing Compensation 252
Section 3.13 Reports to the Certificate Administrator; Collection Account Statements 261
Section 3.14 Access to Certain Documentation 269
Section 3.15 Title and Management of REO Properties and REO Accounts 278
Section 3.16 Sale of Specially Serviced Loans and REO Properties 283
Section 3.17 Additional Obligations of the Master Servicer and the Special Servicer; Inspections 289
Section 3.18 Authenticating Agent 291
Section 3.19 Appointment of Custodians 291
Section 3.20 Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and Reserve Accounts 292
Section 3.21 Servicing Advances 292
Section 3.22 Appointment and Replacement of Special Servicer 297
Section 3.23 Transfer of Servicing Between the Master Servicer and the Special Servicer; Record Keeping; Asset Status Report 304
Section 3.24 Special Instructions for the Master Servicer and/or Special Servicer 311
Section 3.25 Certain Rights and Obligations of the Master Servicer and/or the Special Servicer 312
Section 3.26 Modification, Waiver, Amendment and Consents 314
Section 3.27 Certain Intercreditor Matters Relating to the Whole Loans 320
Section 3.28 Directing Holder Contact with the Master Servicer and the Special Servicer 326
Section 3.29 Controlling Class Certificateholders and the Controlling Class Representative; Certain Rights and Powers of the Directing Holder 326
Section 3.30 Rating Agency Confirmation 331
Section 3.31 Appointment and Duties of the Operating Advisor 334
Section 3.32 Delivery of Conflicted Information to the Certificate Administrator 340
Section 3.33 Resignation Upon Prohibited Risk Retention Affiliation 340
     
ARTICLE IV DISTRIBUTIONS TO CERTIFICATEHOLDERS 341
   
Section 4.01 Distributions 341
Section 4.02 Statements to Certificateholders; Reports by Certificate Administrator; Other Information Available to the Holders and Others 351
Section 4.03 Compliance with Withholding Requirements 365
Section 4.04 REMIC Compliance 365
Section 4.05 Imposition of Tax on the Trust Fund 368

 

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Section 4.06 Remittances 369
Section 4.07 P&I Advances 370
Section 4.08 Appraisal Reductions; Collateral Deficiency Amounts 377
Section 4.09 Grantor Trust Reporting 380
Section 4.10 Secure Data Room 382
     
ARTICLE V THE CERTIFICATES 383
     
Section 5.01 The Certificates 383
Section 5.02 Registration, Transfer and Exchange of Certificates 389
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates 402
Section 5.04 Appointment of Paying Agent 402
Section 5.05 Access to Certificateholders’ Names and Addresses; Special Notices 402
Section 5.06 Actions of Certificateholders 404
Section 5.07 Rule 144A Information 404
Section 5.08 Voting Procedures 404
 
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE DIRECTING HOLDER, THE OPERATING ADVISOR AND THE ASSET REPRESENTATIONS REVIEWER 406
   
Section 6.01 Liability of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor and the Asset Representations Reviewer 406
Section 6.02 Merger or Consolidation of the Master Servicer, the Special Servicer, the Depositor, the Asset Representations Reviewer or the Operating Advisor 406
Section 6.03 Limitation on Liability of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer and Others 407
Section 6.04 Limitation on Resignation of the Master Servicer, the Special Servicer and the Operating Advisor; Termination of the Master Servicer, the Special Servicer and the Operating Advisor 410
Section 6.05 Rights of the Depositor and the Trustee in Respect of the Master Servicer and the Special Servicer 412
Section 6.06 The Master Servicer or Special Servicer as Owners of a Certificate 413
Section 6.07 The Directing Holder and the Operating Advisor 414
Section 6.08 Rights of Non-Directing Holder 418
     
ARTICLE VII SERVICER AND OPERATING ADVISOR TERMINATION 419
   
Section 7.01 Servicer Termination Events 419
Section 7.02 Trustee to Act; Appointment of Successor 428
Section 7.03 Notification to Certificateholders and Other Persons 430
Section 7.04 Other Remedies of Trustee 430
Section 7.05 Waiver of Past Servicer Termination Events and Operating Advisor Termination Events; Termination 431

 

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Section 7.06 Trustee as Maker of Advances 431
Section 7.07 Termination of the Operating Advisor 432
     
ARTICLE VIII CONCERNING THE TRUSTEE AND CERTIFICATE ADMINISTRATOR 435
   
Section 8.01 Duties of Trustee and Certificate Administrator 435
Section 8.02 Certain Matters Affecting the Trustee and the Certificate Administrator 438
Section 8.03 Trustee and Certificate Administrator Not Liable for Certificates or Mortgage Loans 441
Section 8.04 Trustee and Certificate Administrator May Own Certificates 442
Section 8.05 Payment of Trustee’s and Certificate Administrator’s Fees and Expenses; Indemnification 443
Section 8.06 Eligibility Requirements for Trustee and Certificate Administrator 446
Section 8.07 Resignation and Removal of Trustee and Certificate Administrator 447
Section 8.08 Successor Trustee and Certificate Administrator 449
Section 8.09 Merger or Consolidation of Trustee or Certificate Administrator 450
Section 8.10 Appointment of Co-Trustee or Separate Trustee 451
     
ARTICLE IX TERMINATION 452
   
Section 9.01 Termination 452
     
ARTICLE X EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE 457
   
Section 10.01 Intent of the Parties; Reasonableness 457
Section 10.02 Notification Requirements and Deliveries in Connection with securitization of a Serviced Companion Loan 458
Section 10.03 Information to be Provided by the Master Servicer and the Special Servicer 460
Section 10.04 Information to be Provided by the Trustee 461
Section 10.05 Filing Obligations 462
Section 10.06 Form 10-D and Form ABS-EE Filings 464
Section 10.07 Form 10-K Filings 469
Section 10.08 Sarbanes-Oxley Certification 472
Section 10.09 Form 8-K Filings 473
Section 10.10 Suspension of Exchange Act Filings; Incomplete Exchange Act Filings; Amendments to Exchange Act Reports 475
Section 10.11 Annual Compliance Statements 476
Section 10.12 Annual Reports on Assessment of Compliance with Servicing Criteria 477
Section 10.13 Annual Independent Public Accountants’ Servicing Report 480
Section 10.14 Exchange Act Reporting Indemnification 481
Section 10.15 Amendments 484
Section 10.16 Exchange Act Report Signatures; Delivery of Notices 484
Section 10.17 Termination of the Certificate Administrator 486

 

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ARTICLE XI THE ASSET REPRESENTATIONS REVIEWER 487
   
Section 11.01 Asset Review 487
Section 11.02 Payment of Asset Representations Reviewer Asset Review Fees and Expenses; Limitation of Liability 492
Section 11.03 Resignation of the Asset Representations Reviewer 494
Section 11.04 Restrictions of the Asset Representations Reviewer 494
Section 11.05 Termination of the Asset Representations Reviewer 494
     
ARTICLE XII MISCELLANEOUS PROVISIONS 497
   
Section 12.01 Counterparts 497
Section 12.02 Limitation on Rights of Certificateholders 498
Section 12.03 Governing Law 499
Section 12.04 Waiver of Jury Trial; Consent to Jurisdiction 499
Section 12.05 Notices 500
Section 12.06 Severability of Provisions 506
Section 12.07 Notice to the Depositor and Each Rating Agency 507
Section 12.08 Amendment 509
Section 12.09 Confirmation of Intent 514
Section 12.10 No Intended Third-Party Beneficiaries 515
Section 12.11 Entire Agreement 515
Section 12.12 Third Party Beneficiaries 515

 

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TABLE OF EXHIBITS 

 

Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class A-SB Certificate
Exhibit A-5 Form of Class A-4 Certificate
Exhibit A-6 Form of Class A-5 Certificate
Exhibit A-7 Form of Class A-M Certificate
Exhibit A-8 Form of Class B Certificate
Exhibit A-9 Form of Class C Certificate
Exhibit A-10 Form of Class D Certificate
Exhibit A-11 Form of Class E-RR Certificate
Exhibit A-12 Form of Class F-RR Certificate
Exhibit A-13 Form of Class G-RR Certificate
Exhibit A-14 Form of Class H-RR Certificate
Exhibit A-14 Form of Class X-A Certificate
Exhibit A-16 Form of Class X-B Certificate
Exhibit A-17 Form of Class X-D Certificate
Exhibit A-18 Form of Class R Certificate
Exhibit A-19 Form of Class S Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit C-3 Form of Transferee Certificate for Transfers of RR Certificates
Exhibit C-4 Form of Transferor Certificate for Transfers of RR Certificates
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F Securities Legend
Exhibit G Form of Regulation S Transfer Certificate
Exhibit H Form of Transfer Certificate for Exchange or Transfer from Rule 144A Global Certificate to Regulation S Global Certificate during the Restricted Period
Exhibit I Form of Transfer Certificate for Exchange or Transfer from Rule 144A Global Certificate to Regulation S Global Certificate after the Restricted Period
Exhibit J Form of Transfer Certificate for Exchange or Transfer from Regulation S Global Certificate to Rule 144A Global Certificate during the Restricted Period
Exhibit K Form of Distribution Date Statement
Exhibit L-1A Form of Investor Certification for Non-Borrower Party (for Persons other than the Controlling Class Representative and/or a Controlling Class Certificateholder)
Exhibit L-1B Form of Investor Certification for Non-Borrower Party (for the Controlling Class Representative and/or a Controlling Class Certificateholder)
Exhibit L-1C Form of Investor Certification for Borrower Party (for Persons other than the Controlling Class Representative and/or a Controlling Class Certificateholder)

 

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Exhibit L-1D Form of Investor Certification for Borrower Party (for the Controlling Class Representative and/or a Controlling Class Certificateholder)
Exhibit L-1E Form of Notice of Conflicted Controlling Class Holder
Exhibit L-1F Form of Notice of Conflicted Controlling Class Holder to Certificate Administrator
Exhibit L-1G Form of Certification of the Controlling Class Representative
Exhibit L-2 Form of Financial Market Publisher Certification
Exhibit M Form of Notification from Custodian
Exhibit N-1 Form of Closing Date Custodian Certification
Exhibit N-2 Form of Post-Closing Custodian Certification
Exhibit O Form of Trustee Backup Certification
Exhibit P Form of Custodian Backup Certification
Exhibit Q Form of Certificate Administrator Backup Certification
Exhibit R Form of Operating Advisor Backup Certification
Exhibit S [Reserved]
Exhibit T Form of Master Servicer Backup Certification
Exhibit U Form of Special Servicer Backup Certification
Exhibit V Form of Sub-Servicer Backup Certification
Exhibit W Form of Sarbanes Oxley Certification
Exhibit X Mortgage Loan Seller Sub-Servicers
Exhibit Y Mortgage Loans with Earnout/Holdback Provisions
Exhibit Z Form of NRSRO Certification
Exhibit AA-1 Form of Transferor Certificate for Transfer of the Excess Servicing Fee Rights
Exhibit AA-2 Form of Transferee Certificate for Transfer of the Excess Servicing Fee Rights
Exhibit BB Form of Operating Advisor Annual Report
Exhibit CC Additional Disclosure Notification
Exhibit DD-1 Form of Power of Attorney by Trustee for Master Servicer
Exhibit DD-2 Form of Power of Attorney by Trustee to the Special Servicer
Exhibit EE Form of Non-Serviced Mortgage Loan Notification
Exhibit FF Form of Companion Loan Noteholder Certification
Exhibit GG [Reserved]
Exhibit HH Form of Asset Review Report by the Asset Representations Reviewer
Exhibit II Form of Asset Review Report Summary by the Asset Representations Reviewer
Exhibit JJ Asset Review Procedures
Exhibit KK Form of Certification to Certificate Administrator Requesting Access to Secure Data Room
Exhibit LL Form of Notice of [Additional Delinquent Mortgage Loan][Cessation of Delinquent Mortgage Loan][Cessation of Asset Review Trigger]
Exhibit MM Form of Certificate Administrator Receipt of the RR Certificates
   
  TABLE OF SCHEDULES
   
Schedule I Directing Holders
Schedule II Servicing Criteria to be Addressed in Assessment of Compliance
Schedule III Class A-SB Planned Principal Balance Schedule
Schedule IV Additional Form 10-D Disclosure
Schedule V Additional Form 10-K Disclosure

 

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Schedule VI Form 8-K Disclosure Information
Schedule VII Initial Serviced Companion Loan Noteholder(s)
Schedule VIII Contact Information for the Other 17g-5 Information Provider

 

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Pooling and Servicing Agreement, dated as of November 1, 2017, between Deutsche Mortgage & Asset Receiving Corporation, as Depositor, Wells Fargo Bank, National Association, as Master Servicer, LNR Partners, LLC, as Special Servicer, Wilmington Trust, National Association, as Trustee, Wells Fargo Bank, National Association, as Certificate Administrator, Paying Agent and Custodian, Park Bridge Lender Services LLC, as Operating Advisor, and Park Bridge Lender Services LLC, as Asset Representations Reviewer.

 

PRELIMINARY STATEMENT:

 

(Terms used but not defined in this Preliminary Statement shall have
the meanings specified in Article I hereof)

 

The Depositor intends to sell pass-through certificates to be issued hereunder in multiple Classes which in the aggregate will evidence the entire beneficial ownership interest in the Trust Fund consisting primarily of the Mortgage Loans. For income tax purposes alone, the Trust Fund will consist of the Mortgage Loans (other than the Gurnee Mills Mortgage Loan and the West Burlington Plaza Mortgage Loan), the Single Loan REMICs (namely, the “West Burlington Plaza Loan REMIC” and the “Gurnee Mills Loan REMIC”), the Lower-Tier REMIC, the Upper-Tier REMIC and the Grantor Trust, all as more fully described below.

 

SINGLE LOAN REMICS

 

Gurnee Mills Loan REMIC. Pursuant to a REMIC declaration effective as of October 4, 2017 (the “Gurnee Mills REMIC Declaration”) a REMIC election will be made with respect to the Gurnee Mills Mortgage Loan. The Gurnee Mills Loan REMIC issued a single uncertificated regular REMIC interest (the “Gurnee Mills Loan REMIC Regular Interest”) and a single uncertificated residual interest (the “Gurnee Mills Residual Interest”). The Gurnee Mills Loan REMIC Regular Interest represents the entire interest in the Gurnee Mills Mortgage Loan. The Gurnee Mills Residual Interest will be an asset of the issuing entity but will not be held by any REMIC. Its ownership will be evidenced by the Class R Certificates. The “Startup Day” of the Gurnee Mills Loan REMIC under Section 860G(a)(9) of the Code is October 4, 2017.

 

West Burlington Plaza Loan REMIC. The West Burlington Plaza Loan REMIC will hold the West Burlington Plaza Mortgage Loan and will issue a single, uncertificated regular REMIC interest (the “West Burlington Plaza Loan REMIC Regular Interest”) and a single uncertificated residual interest (the “West Burlington Plaza Residual Interest”) each of which is so designated under Section 860G(a)(1) and Section 860G(a)(2) of the Code, respectively. The West Burlington Plaza Loan REMIC Regular Interest will be entitled to principal and interest in amounts equal to the principal and interest payable with respect to the West Burlington Plaza Mortgage Loan. The West Burlington Plaza Residual Interest will be an asset of the issuing entity but will not be held by any REMIC. Its ownership will be evidenced by the Class R Certificates.

 

LOWER-TIER REMIC

 

The Lower-Tier REMIC will hold the Mortgage Loans (exclusive of entitlement to the Excess Interest and the Gurnee Mills Mortgage Loan and the West Burlington Plaza

 

 

 

Mortgage Loan), the regular interests in the Single Loan REMICs and certain other related assets subject to this Agreement, and will issue (i) the Lower-Tier Regular Interests set forth in the table below (the “Lower-Tier Regular Interests”), as classes of regular interests in the Lower-Tier REMIC and (ii) the Class LTR Interest as the sole class of residual interests in the Lower-Tier REMIC, which will be evidenced by the Class R Certificates.

 

The following table sets forth the Class designation, initial principal balance or notional amount (as applicable) and initial pass-through rate of each Class of Lower-Tier Regular Interest and its “Corresponding Upper-Tier Regular Interest”:

 

Lower-Tier Regular Interests / (Corresponding Upper-Tier Regular Interests) 

Initial Principal Balance or Notional Amount 

Pass-Through Rate 

Class LA-1 / (A-1) $44,159,000 (1)
Class LA-2 / (A-2) $103,497,000 (1)
Class LA-3 / (A-3) $67,649,000 (1)
Class LA-SB / (A-SB) $61,062,000 (1)
Class LA-4 / (A-4) $209,460,000 (1)
Class LA-5 / (A-5) $257,521,000 (1)
Class LA-M / (A-M) $104,865,000 (1)
Class LB / (B) $42,477,000 (1)
Class LC / (C) $45,132,000 (1)
Class LD / (D) $18,060,000 (1)
Class LE-RR / (E-RR) $33,708,000 (1)
Class LF-RR/ (F-RR) $23,894,000 (1)
Class LG-RR / (G-RR) $10,619,000 (1)
Class LH-RR / (H-RR) $39,822,721 (1)
Class LTR (2) (2)

 

(1)The pass-through rate for this Class of Lower-Tier Regular Interest is equal to the WAC Rate.

 

(2)The Class LTR is the sole class of residual interest in the Lower-Tier REMIC. It is not entitled to any principal or interest.

 

UPPER-TIER REMIC

 

The Upper-Tier REMIC will hold the Lower-Tier Regular Interests and certain other related assets subject to this Agreement and will issue (i) the Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class A-5, Class X-A, Class X-B, Class X-D, Class A-M, Class B, Class C, Class D, Class E-RR, Class F-RR, Class G-RR and Class H-RR REMIC regular interests, which are designated as classes of regular interests in the Upper-Tier REMIC (the “Upper-Tier Regular Interests”) and represented by Certificates of the same designation (the “Corresponding Certificates”), and (ii) the Class UTR Interest as the sole class of residual interests in the Upper-Tier REMIC, which will be evidenced by the Class R Certificates.

 

The following table sets forth the Class designation, initial principal balance or initial Notional Amount (as applicable), and initial Pass-Through Rate of each Class of Upper-Tier Regular Interests.

 

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Upper-Tier Regular Interests Represented by the Certificates 

Initial Principal Balance or Notional Amount 

Initial Pass-Through Rate 

Class A-1 $44,159,000 2.168%
Class A-2 $103,497,000 3.250%
Class A-3 $67,649,000 3.104%
Class A-SB $61,062,000 3.332%
Class A-4 $209,460,000 3.190%
Class A-5 $257,521,000 3.456%
Class X-A $848,213,000(4) (1)
Class X-B $42,477,000(4) (2)
Class X-D $63,192,000(4) (3)
Class A-M $104,865,000 3.709%
Class B $42,477,000 3.911%
Class C $45,132,000 4.269%
Class D $18,060,000 2.750%
Class E-RR $33,708,000 4.278%
Class F-RR $23,894,000 4.278%
Class G-RR $10,619,000 4.278%
Class H-RR $39,822,721 4.278%
Class UTR (5) (5)

 

(1)The regular interest represented by this certificate is entitled to a specified portion of the interest payable on each of the Class LA-1, Class LA-2, Class LA-3, Class LA-SB, Class LA-4, Class LA-5 and Class LA-M Lower-Tier Regular Interests equal to the excess of the WAC Rate over the interest payable on the Corresponding Upper-Tier Regular Interest.

 

(2)The regular interest represented by this certificate is entitled to a specified portion of the interest payable on the Class LB Lower-Tier Regular Interest equal to the excess of the WAC Rate over the interest payable on the Class B Upper-Tier Regular Interest.

 

(3)The regular interest represented by this certificate is entitled to a specified portion of the interest payable on each of the Class LC and Class LD Lower-Tier Regular Interests equal to the excess of the WAC Rate over the interest payable on the Corresponding Upper-Tier Regular Interest.

 

(4)Notional Amount.

 

(5)The Class UTR Interest is the sole class of residual interest in the Upper-Tier REMIC. It is not entitled to distributions of principal or interest.

 

The Certificate Balance of any Class of Principal Balance Certificates outstanding at any time represents the maximum amount which holders thereof are entitled to receive as distributions allocable to principal from the cash flow on the Mortgage Loans and the other assets in the Trust Fund; provided that if amounts previously allocated as Realized Losses to a Class of Certificates in reduction of the Certificate Balance thereof are subsequently recovered (including without limitation after the reduction of the Certificate Balance of such Class to zero), such Class may receive distributions in respect of such recoveries in accordance with the priorities set forth in Section 4.01 of this Agreement.

 

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GRANTOR TRUST

 

The portions of the Trust Fund consisting of the Class S Specific Grantor Trust Assets (the “Grantor Trust”) shall be classified as a trust under Section 301.7701-4(c) of the Income Tax Regulations, the beneficial owners of which are treated as the owner of the trust’s assets under Section 671 of the Code. The Class S Certificates shall represent undivided beneficial interests in the Grantor Trust. As provided herein, the Certificate Administrator shall not take any actions that would cause (i) the Grantor Trust to lose its trust classification, (ii) the beneficial owners not to be treated as the owners of the Grantor Trust’s assets, or (iii) the Grantor Trust to be treated as part of any Trust REMIC.

 

To the fullest extent permitted by law, any inconsistencies or ambiguities in this Agreement or in the administration of this Agreement shall be resolved in a manner that preserves the validity and intended tax treatment of the Trust REMICs and the Grantor Trust and causes the maximum amounts to be paid with respect to the holders of the Upper-Tier Regular Interests.

 

As of the Cut-off Date, the Mortgage Loans have an aggregate Stated Principal Balance equal to approximately $1,061,925,721.

 

The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 1 on the Mortgage Loan Schedule (the “Headquarters Plaza Mortgage Loan”) also secures 3 companion loans to the same Borrower, which are pari passu in right of payment to the Headquarters Plaza Mortgage Loan (the “Headquarters Plaza Companion Loans”). The Headquarters Plaza Whole Loan is serviced pursuant to (i) this Agreement and (ii) the related Intercreditor Agreement. The Headquarters Plaza Companion Loans and all amounts attributable thereto will not be assets of the Trust Fund, the Trust REMICs or the Grantor Trust and will be beneficially owned by the related Companion Loan Noteholders.

 

The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 2 on the Mortgage Loan Schedule (the “U-Haul SAC Portfolios 14, 15, 17 Mortgage Loan”) also secures 2 companion loans to the same Borrower, which are pari passu in right of payment to the U-Haul SAC Portfolios 14, 15, 17 Mortgage Loan (the “U-Haul SAC Portfolios 14, 15, 17 Companion Loans”). The U-Haul SAC Portfolios 14, 15, 17 Whole Loan is currently serviced pursuant to (i) the Other Pooling and Servicing Agreement related to the Other Securitization designated as JPMDB 2017-C7 and (ii) the related Intercreditor Agreement. The U-Haul SAC Portfolios 14, 15, 17 Companion Loans and all amounts attributable thereto will not be assets of the Trust Fund, the Trust REMICs or the Grantor Trust and will be beneficially owned by the related Companion Loan Noteholders.

 

The portfolio of Mortgaged Properties that secures the Mortgage Loan identified as Loan No. 3 on the Mortgage Loan Schedule (the “Burbank Media Portfolio Conduit 1 Mortgage Loan”) also secures 8 companion loans to the same Borrower, which are pari passu in right of payment to the Burbank Office Portfolio Mortgage Loan (the “Burbank Office Portfolio Pari Passu Companion Loans”) and an additional 2 companion loans, which are subordinate in

 

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right of payment to the Burbank Office Portfolio Mortgage Loan (the “Burbank Office Portfolio Subordinate Companion Loans” and, together with the Burbank Office Portfolio Companion Loans, the “Burbank Office Portfolio Companion Loans”). The Burbank Office Portfolio Whole Loan is currently serviced pursuant to (i) the Other Pooling and Servicing Agreement related to the Other Securitization designated as DBUBS 2017-BRBK and (ii) the related Intercreditor Agreement. The Burbank Office Portfolio Companion Loans and all amounts attributable thereto will not be assets of the Trust Fund, the Trust REMICs or the Grantor Trust and will be beneficially owned by the related Companion Loan Noteholders.

 

The portfolio of Mortgaged Properties that secures the Mortgage Loan identified as Loan No. 6 on the Mortgage Loan Schedule (the “Lightstone Portfolio Mortgage Loan”) also secures 1 companion loan to the same Borrower, which is pari passu in right of payment to the Lightstone Portfolio Mortgage Loan (the “Lightstone Portfolio Companion Loan”). The Lightstone Portfolio Whole Loan is serviced pursuant to (i) this Agreement and (ii) the related Intercreditor Agreement. The Lightstone Portfolio Companion Loan and all amounts attributable thereto will not be an asset of the Trust Fund, the Trust REMICs or the Grantor Trust and will be beneficially owned by the related Companion Loan Noteholder.

 

The portfolio of Mortgaged Properties that secures the Mortgage Loan identified as Loan No. 13 on the Mortgage Loan Schedule (the “IRG Portfolio Mortgage Loan”) also secures 1 companion loan to the same Borrower, which is pari passu in right of payment to the IRG Portfolio Mortgage Loan (the “IRG Portfolio Companion Loan”). The IRG Portfolio Whole Loan is currently serviced pursuant to (i) the Other Pooling and Servicing Agreement related to the Other Securitization designated as JPMDB 2017-C7 and (ii) the related Intercreditor Agreement. The IRG Portfolio Companion Loan and all amounts attributable thereto will not be an asset of the Trust Fund, the Trust REMICs or the Grantor Trust and will be beneficially owned by the related Companion Loan Noteholder.

 

The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 14 on the Mortgage Loan Schedule (the “Station Place III Mortgage Loan”) also secures 4 companion loans to the same Borrower, which are pari passu in right of payment to the Station Place III Mortgage Loan (the “Station Place III Companion Loans”). The Station Place III Whole Loan is currently serviced pursuant to (i) the Other Pooling and Servicing Agreement related to the Other Securitization designated as JPMDB 2017-C7 and (ii) the related Intercreditor Agreement. The Station Place III Companion Loans and all amounts attributable thereto will not be assets of the Trust Fund, the Trust REMICs or the Grantor Trust and will be beneficially owned by the related Companion Loan Noteholders.

 

The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 15 on the Mortgage Loan Schedule (the “Moffett Place Building 4 Mortgage Loan”) also secures 3 companion loans to the same Borrower, which are pari passu in right of payment to the Moffett Place Building 4 Mortgage Loan (the “Moffett Place Building 4 Companion Loans”). The Moffett Place Building 4 Whole Loan is currently serviced pursuant to (i) the Other Pooling and Servicing Agreement related to the Other Securitization designated as JPMDB 2017-C7 and (ii) the related Intercreditor Agreement. The Moffett Place Building 4 Companion Loans and all

 

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amounts attributable thereto will not be assets of the Trust Fund, the Trust REMICs or the Grantor Trust and will be beneficially owned by the related Companion Loan Noteholders.

 

The portfolio of Mortgaged Properties that secures the Mortgage Loan identified as Loan No. 16 on the Mortgage Loan Schedule (the “Corporate Woods Portfolio Mortgage Loan”) also secures 5 companion loans to the same Borrower, which are pari passu in right of payment to the Corporate Woods Portfolio Mortgage Loan (the “Corporate Woods Portfolio Companion Loans”). The Corporate Woods Portfolio Whole Loan is currently serviced pursuant to (i) the Other Pooling and Servicing Agreement related to the Other Securitization designated as CGCMT 2017-P8 and (ii) the related Intercreditor Agreement. The Corporate Woods Portfolio Companion Loans and all amounts attributable thereto will not be assets of the Trust Fund, the Trust REMICs or the Grantor Trust and will be beneficially owned by the related Companion Loan Noteholders.

 

The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 18 on the Mortgage Loan Schedule (the “Integrated Health Campus Mortgage Loan”) also secures 1 companion loan to the same Borrower, which is pari passu in right of payment to the Integrated Health Campus Mortgage Loan (the “Integrated Health Campus Companion Loan”). The Integrated Health Campus Whole Loan is currently serviced pursuant to (i) the Other Pooling and Servicing Agreement related to the Other Securitization designated as COMM 2017-COR2 and (ii) the related Intercreditor Agreement. The Integrated Health Campus Companion Loan and all amounts attributable thereto will not be an asset of the Trust Fund, the Trust REMICs or the Grantor Trust and will be beneficially owned by the related Companion Loan Noteholder.

 

The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 23 on the Mortgage Loan Schedule (the “Colorado Center Mortgage Loan”) also secures 9 companion loans to the same Borrower, which are pari passu in right of payment to the Colorado Center Mortgage Loan (the “Colorado Center Pari Passu Companion Loans”) and an additional 3 companion loans, which are subordinate in right of payment to the Colorado Center Mortgage Loan (the “Colorado Center Subordinate Companion Loans” and, together with the Colorado Center Pari Passu Companion Loans, the “Colorado Center Companion Loans”). The Colorado Center Whole Loan is currently serviced pursuant to (i) the Other Pooling and Servicing Agreement related to the Other Securitization designated as BXP 2017-CC and (ii) the related Intercreditor Agreement. The Colorado Center Companion Loans and all amounts attributable thereto will not be assets of the Trust Fund, the Trust REMICs or the Grantor Trust and will be beneficially owned by the related Companion Loan Noteholders.

 

The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 27 on the Mortgage Loan Schedule (the “Gurnee Mills Mortgage Loan”) also secures 6 companion loans to the same Borrower, which are pari passu in right of payment to the Gurnee Mills Mortgage Loan (the “Gurnee Mills Companion Loans”). The Gurnee Mills Whole Loan is currently serviced pursuant to (i) the Other Pooling and Servicing Agreement related to the Other Securitization designated as CSAIL 2016-C7 and (ii) the related Intercreditor Agreement. The Gurnee Mills Companion Loans and all amounts attributable thereto will not be assets of the

 

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Trust Fund, the Trust REMICs or the Grantor Trust and will be beneficially owned by the related Companion Loan Noteholders.

 

The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 32 on the Mortgage Loan Schedule (the “Cleveland East Mortgage Loan”) also secures 1 companion loan to the same Borrower, which is pari passu in right of payment to the Cleveland East Mortgage Loan (the “Cleveland East Companion Loan”). The Cleveland East Whole Loan is currently serviced pursuant to (i) the Other Pooling and Servicing Agreement related to the Other Securitization designated as WFCM 2017-C39 and (ii) the related Intercreditor Agreement. The Cleveland East Companion Loan and all amounts attributable thereto will not be assets of the Trust Fund, the Trust REMICs or the Grantor Trust and will be beneficially owned by the related Companion Loan Noteholder.

 

The portfolio of Mortgaged Properties that secures the Mortgage Loan identified as Loan No. 35 on the Mortgage Loan Schedule (the “Arizona Retail Portfolio Mortgage Loan”) also secures 1 companion loan to the same Borrower, which is subordinate in right of payment to the Arizona Retail Portfolio Mortgage Loan (the “Arizona Retail Portfolio Subordinate Companion Loan” or the “Arizona Retail Portfolio Companion Loan”). The Arizona Retail Portfolio Whole Loan is currently serviced pursuant to (i) this Agreement and (ii) the related Intercreditor Agreement. The Arizona Retail Portfolio Companion Loan and all amounts attributable thereto will not be an asset of the Trust Fund, the Trust REMICs or the Grantor Trust and will be beneficially owned by the related Companion Loan Noteholder.

 

The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 37 on the Mortgage Loan Schedule (the “Covance Business Center Mortgage Loan”) also secures 1 companion loan to the same Borrower, which is pari passu in right of payment to the Covance Business Center Mortgage Loan (the “Covance Business Center Companion Loan”). The Covance Business Center Whole Loan is currently serviced pursuant to (i) the Other Pooling and Servicing Agreement related to the Other Securitization designated as JPMDB 2017-C7 and (ii) the related Intercreditor Agreement. The Covance Business Center Companion Loan and all amounts attributable thereto will not be assets of the Trust Fund, the Trust REMICs or the Grantor Trust and will be beneficially owned by the related Companion Loan Noteholder.

 

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In consideration of the mutual agreements herein contained, the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor, the Asset Representations Reviewer and the other parties hereto hereby agree as follows:

 

Article I

DEFINITIONS

 

Section 1.01 Defined Terms. Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the meanings specified in this Article.

 

8-K Filing Deadline”: As defined in Section 10.09 of this Agreement.

 

10-K Filing Deadline”: As defined in Section 10.07 of this Agreement.

 

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

 

17g-5 Information Provider’s Website”: The internet website of the 17g-5 Information Provider, initially located at www.ctslink.com, under the “NRSRO” tab or other applicable tab of the respective transaction, access to which is limited to the Depositor and to NRSROs who have provided an NRSRO Certification to the 17g-5 Information Provider.

 

AB Modified Loan” Any Corrected Mortgage Loan (1) that became a Corrected Mortgage 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 Other Pooling and Servicing Agreement) 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.

 

Acceptable Insurance Default”: With respect to any Serviced Mortgage Loan and any related Serviced Companion Loan, any Default arising by reason of the failure of the related Borrower to maintain standard extended coverage casualty insurance or other insurance that covers acts of terrorism as required by the related Loan Documents, with respect to which the Master Servicer or the Special Servicer, as applicable, has determined, in accordance with the Servicing Standard (and unless a Control Termination Event has occurred and is continuing, with the consent of the Directing Holder (or, if a Control Termination Event has occurred and is continuing, but prior to the occurrence and continuance of a Consultation Termination Event, after consulting with the Directing Holder as provided in Section 6.07) (but other than with respect to any Mortgage Loan that is a Conflicted Loan)), that either: (x) such insurance is not available at commercially reasonable rates and the subject hazards are not at the time commonly insured against for properties similar to the Mortgaged Property and located in or around the

 

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geographic region in which such Mortgaged Property is located (but only by reference to such insurance that has been obtained by such owners at current market rates), or (y) such insurance is not available at any rate; provided that the Directing Holder will not have more than 30 days to respond to the Master Servicer’s or the Special Servicer’s, as applicable, request for such consent or consultation, as applicable; provided, further, that upon the Master Servicer’s or Special Servicer’s determination, consistent with the Servicing Standard, that exigent circumstances do not allow the Master Servicer or the Special Servicer, as applicable, to consult with the Directing Holder, the Master Servicer or the Special Servicer, as applicable, will not be required to do so. In making this determination, the Master Servicer or the Special Servicer, as applicable, to the extent consistent with the Servicing Standard, may rely on the opinion of an insurance consultant.

 

Accrued AB Loan Interest”: with respect to any AB Modified Loan and any date of determination, the accrued and unpaid interest that remains unpaid with respect to the junior note(s) of such AB Modified Loan.

 

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

 

Action Notice Response”: As defined in Section 2.03(l)(i).

 

Actual/360 Basis”: The accrual of interest calculated on the basis of the actual number of days elapsed during any calendar month (or other applicable accrual period) in a year assumed to consist of 360 days.

 

Actual/360 Loans”: The Mortgage Loans indicated as such in the Mortgage Loan Schedule and any related Serviced Companion Loan.

 

Additional Form 10-D Disclosure”: As defined in Section 10.06 of this Agreement.

 

Additional Form 10-K Disclosure”: As defined in Section 10.07 of this Agreement.

 

Additional Servicer”: Each Affiliate of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Mortgage Loan Sellers or the Underwriters (other than an Affiliate of any such party acting in the capacity of a Mortgage Loan Seller Sub-Servicer), that Services any of the Mortgage Loans, and each Person, other than the Special Servicer, who is not an Affiliate of any of the Master Servicer, the Certificate Administrator, the Trustee, the Mortgage Loan Sellers or the Underwriters, who Services 10% or more of the Mortgage Loans (based on their Stated Principal Balance).

 

Additional Trust Fund Expense”: Any expense incurred with respect to the Trust Fund and not otherwise included in the calculation of a Realized Loss that would result in the Holders of Regular Certificates receiving less than the full amount of principal and/or the Interest Accrual Amount to which they are entitled on any Distribution Date.

 

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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, the Operating Advisor Fee Rate and the CREFC® Intellectual Property Royalty License Fee Rate.

 

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

 

Advance Interest Amount”: Interest at the Reimbursement Rate on the aggregate amount of P&I Advances and Servicing Advances for which the Master Servicer or the Trustee, as applicable, has not been reimbursed for the number of days from the date on which such Advance was made to the date of payment or reimbursement of the related Advance or other such amount, less any amount of interest previously paid on such Advance; provided that if, during any Collection Period in which an Advance was made, the related Borrower makes payment of an amount in respect of which such Advance was made with interest at the Default Rate, the Advance Interest Amount payable to the Master Servicer or the Trustee shall be paid first, from the amount of Default Interest on the related Mortgage Loan (or Whole Loan, with respect to Servicing Advances) actually paid by such Borrower, second, from late payment fees on the related Mortgage Loan (or Whole Loan, with respect to Servicing Advances) actually paid by the related Borrower, and third, upon determining in accordance with the Servicing Standard that such Advance Interest Amount is not recoverable from the amounts described in first or second, from other amounts on deposit in the Collection Account or the Serviced Whole Loan Collection Account, as applicable.

 

Adverse REMIC Event”: Any action, that, under the REMIC Provisions, if taken or not taken, as the case may be, could (i) cause any Trust REMIC to fail to qualify as a REMIC or (ii) result in the imposition of a tax upon any Trust REMIC or the Trust Fund (including but not limited to the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but not including the tax on “net income from foreclosure property”).

 

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. The Trustee and the Certificate Administrator may obtain and rely on an Officer’s Certificate of the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer or the Depositor to determine whether any Person is an Affiliate of such party.

 

Affiliated Person”: Any Person (other than a Rating Agency) involved in the organization or operation of the Depositor or an affiliate, as defined in Rule 405 of the Act, of such Person.

 

Affirmative Asset Review Vote”: As defined in Section 11.04(a).

 

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Agent Member”: Members of, or Depository Participants in, the Depository.

 

Aggregate Principal Distribution Amount”: For any Distribution Date, an amount equal to the sum of the following amounts:

 

(A) the Scheduled Principal Distribution Amount for such Distribution Date; and

 

(B) the Unscheduled Principal Distribution Amount for such Distribution Date;

 

provided that the Aggregate 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 the Non-Serviced Mortgage Loan under the related Other Pooling and Servicing Agreement 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 Aggregate 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 Aggregate 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 are subsequently recovered on the related Mortgage Loan, such recovery will increase the Aggregate Principal Distribution Amount for the Distribution Date related to the period in which such recovery occurs.

 

The principal component of the amounts set forth above shall be determined in accordance with Section 1.02 hereof.

 

Agreement”: This Pooling and Servicing Agreement and all amendments hereof and supplements hereto.

 

Allocated Loan Amount”: With respect to each Mortgaged Property, the portion of the principal amount of the related Mortgage Loan allocated to such Mortgaged Property in the applicable Mortgage, Loan Agreement or the Mortgage Loan Schedule.

 

A.M. Best”: A.M. Best Company, Inc., or its successor in interest.

 

Anticipated Repayment Date”: With respect to any 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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Anticipated Termination Date”: Any Distribution Date on which it is anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c) of this Agreement.

 

Applicable Law”: As defined in Section 8.02(f) of this Agreement.

 

Applicable Procedures”: As defined in Section 5.02(c)(ii)(A) of this Agreement.

 

Applicable State and Local Tax Law”: For purposes hereof, the Applicable State and Local Tax Law shall be (a) the tax laws of the State of New York and Illinois and (b) such state or local tax laws whose applicability shall have been brought to the attention of 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.

 

Appraised-Out Class”: As defined in Section 4.08(b) of this Agreement.

 

Appraisal”: An appraisal prepared by an Independent MAI appraiser with at least five years’ experience in properties of like kind and in the same area.

 

Appraisal Reduction Amount”: For any Distribution Date and for any Serviced Mortgage Loan and any related Serviced Companion as to which an Appraisal Reduction Event has occurred, an amount calculated by the Master Servicer (and, if no Consultation Termination Event has occurred, in consultation with the Directing Holder, and, if an Operating Advisor Consultation Event has occurred and is continuing, in consultation with the Operating Advisor to the extent set forth in Section 3.31(d) of this Agreement) as of the first Determination Date that is at least 10 Business Days following the date the Master Servicer receives from the Special Servicer the related Appraisal (and any information reasonably requested by the Master Servicer from the Special Servicer, to the extent such information is in the possession of the Special Servicer, necessary to calculate the Appraisal Reduction Amount) or the Special Servicer’s Small Loan Appraisal Estimate (and thereafter by the first Determination Date following any material change in the amounts set forth in the following equation) equal to the excess, if any, of (a) the Stated Principal Balance of such Mortgage Loan or Serviced Whole Loan 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 or Serviced Whole Loan 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 a Servicing Advance), minus such downward adjustments as the Special Servicer may make (without implying any obligation to do so) based upon its review of the Appraisals and any other information it deems relevant, or (2) by an internal valuation performed by the Special Servicer with respect to any Mortgage Loan or Serviced Whole Loan with an outstanding principal balance less than $2,000,000, plus (B) all escrows and reserves (other than escrows and reserves for taxes and insurance), plus (C) all insurance and casualty proceeds and condemnation awards that constitute collateral for the related Mortgage Loan or Serviced Whole Loan (whether paid or then payable by any insurance company or government authority), over (ii) the sum as of the Due Date occurring in the month of the date of determination of (without duplication) (A) to the extent not previously advanced by the Master Servicer or the Trustee, all unpaid interest on such

 

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Mortgage Loan or Serviced Whole Loan at a per annum rate equal to the Mortgage Rate (or with respect to the applicable Serviced Whole Loan, the weighted average of the Mortgage Rates for the related Mortgage Loan and related Serviced Companion Loans), (B) all unreimbursed Servicing Advances and the principal portion of all unreimbursed P&I Advances, and all unpaid interest on Advances at the Reimbursement Rate, in respect of such Mortgage Loan or Serviced Whole Loan, (C) any other unpaid Additional Trust Fund Expenses in respect of such Mortgage Loan or Serviced Whole Loan (but subject to the provisions of Section 1.02(e)), (D) all currently due and unpaid real estate taxes, ground rents and assessments and insurance premiums (net of any escrows or reserves therefor) that have not been the subject of an Advance by the Master Servicer or the Trustee, as applicable, and (E) all other amounts due and unpaid with respect to such Mortgage Loan or Serviced Whole Loan that, if not paid by the related Borrower, would result in a shortfall in distributions to the Certificateholders, except for Prepayment Premiums and Yield Maintenance Charges payable due to an acceleration of such Mortgage Loan or Serviced Whole Loan following a default thereunder; provided, without limiting the Special Servicer’s obligation to order and obtain such Appraisal, if the Special Servicer has not obtained an Appraisal, Updated Appraisal or Small Loan Appraisal Estimate, as applicable, referred to above within 60 days of the Appraisal Reduction Event (or in the case of an Appraisal Reduction Event occurring by reason of clause (ii) of the definition thereof, within 30 days of such 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 the applicable Serviced Whole Loan until such time as such Updated Appraisal or Small Loan Appraisal Estimate referred to above is received and the Appraisal Reduction Amount is recalculated.

 

Notwithstanding anything herein to the contrary, the aggregate Appraisal Reduction Amount related to a Serviced Mortgage Loan and any related Serviced Companion Loan or the related REO Property will be reduced to zero as of the date the related Mortgage Loan or Serviced Whole Loan is paid in full, liquidated, repurchased or otherwise removed from the Trust Fund. In addition, with respect to any Serviced Mortgage Loan and any related Serviced Companion Loan as to which an Appraisal Reduction Event has occurred, such Mortgage Loan or Serviced Whole Loan shall no longer be subject to the Appraisal Reduction Amount if (a) such Mortgage Loan or Serviced Whole Loan has become a Corrected Mortgage Loan (if a Servicing Transfer Event had occurred with respect to the related Mortgage Loan) and (b) no other Appraisal Reduction Event has occurred and is continuing.

 

Each Serviced Whole Loan will be treated as a single mortgage loan for purposes of calculating an Appraisal Reduction Amount with respect to the mortgage loans that comprise such Serviced Whole Loan. Any Appraisal Reduction Amount in respect of a Serviced Whole Loan shall be allocated pro rata, to the related Mortgage Loan and the related Serviced Pari Passu Companion Loan that is pari passu in right of payment with such Mortgage Loan, if any.

 

For any Distribution Date and for any Non-Serviced Mortgage Loan as to which an Appraisal Reduction Event has occurred, the Appraisal Reduction Amount shall be an amount calculated by the applicable servicer in accordance with and pursuant to the terms of the related Other Pooling and Servicing Agreement.

 

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Appraisal Reduction Event”: With respect to any Serviced Mortgage Loan and any related Serviced Companion Loan, the earliest of (i) the date on which such Mortgage Loan or Serviced Whole Loan becomes a Modified Mortgage Loan, (ii) the 90th day following the occurrence of any uncured Delinquency in Periodic Payments with respect to such Mortgage Loan or Serviced Whole Loan, (iii) receipt of notice that the related Borrower has filed a bankruptcy petition or the date on which a receiver is appointed and continues in such capacity in respect of a Mortgaged Property securing such Mortgage Loan or Serviced Whole Loan or the 60th day after the related Borrower becomes the subject of involuntary bankruptcy proceedings and such proceedings are not dismissed in respect of a Mortgaged Property securing such Mortgage Loan or Serviced Whole Loan, (iv) the date on which the Mortgaged Property securing such Mortgage Loan or Serviced Whole Loan becomes a Serviced REO Property and (v) with respect to a Balloon Loan, a payment default shall have occurred with respect to the related Balloon Payment; provided, however, if (a) the related Borrower is diligently seeking a refinancing or sale of the related Mortgaged Property or Mortgaged Properties and delivers, on or prior to the related Maturity Date or extended Maturity Date, a statement to that effect and delivers, within 30 days following the related Maturity Date or extended Maturity Date, a refinancing commitment, letter of intent or otherwise binding application for refinancing from an acceptable lender or signed purchase agreement reasonably acceptable to the Master Servicer (who will be required to promptly deliver a copy to the Special Servicer, the Operating Advisor (if a Control Termination Event has occurred and is continuing), the Directing Holder (but only for so long as no Consultation Termination Event has occurred and is continuing), (B) the related Borrower continues to make its Assumed Scheduled Payment, and (C) no other Appraisal Reduction Event has occurred with respect to that Mortgage Loan or Serviced Whole Loan, an Appraisal Reduction Event will not occur until the earlier of (1) 120 days beyond the related Maturity Date (or extended Maturity Date) and (2) the termination of such transaction document.

 

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

 

ARD Loan”: Any Mortgage Loan the terms of which provide that if, after an Anticipated Repayment Date, the related Borrower has not prepaid such Mortgage Loan in full, any principal outstanding on that date will accrue interest at the Revised Rate rather than the Initial Rate.

 

Argentic”: Argentic Real Estate Finance LLC, in its capacity as a Mortgage Loan Seller, and its successors in interest.

 

Argentic Indemnification Agreement”: The agreement dated and effective the Pricing Date, between Argentic, the Depositor, the Underwriters and the Initial Purchasers.

 

Argentic Mortgage Loans”: Each Mortgage Loan transferred and assigned to the Depositor pursuant to the Argentic Purchase Agreement.

 

Argentic Purchase Agreement”: The Mortgage Loan Purchase Agreement dated and effective the Pricing Date, between Argentic and the Depositor.

 

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Arizona Retail Portfolio Companion Loan”: As defined in the Preliminary Statement.

 

Arizona Retail Portfolio Control Appraisal Period”: With respect to the Arizona Retail Portfolio Whole Loan, the period that will exist if and for so long as (A)(a)(1) the initial principal balance of the Arizona Retail Portfolio Subordinate Companion Loan minus (2) the sum (without duplication) of (x) any payments of principal (whether as principal prepayments or otherwise) allocated to, and received on, the Arizona Retail Portfolio Subordinate Companion Loan, (y) any appraisal reductions for the Arizona Retail Portfolio Whole Loan that are allocated to the Arizona Retail Portfolio Subordinate Companion Loan and (z) any losses realized with respect to the Arizona Retail Portfolio Mortgaged Properties or the Arizona Retail Portfolio Whole Loan that are allocated to the Arizona Retail Portfolio Subordinate Companion Loan, plus (3) the Arizona Retail Portfolio Subordinate Companion Loan Threshold Event Collateral, is less than (b) 25% of the remainder of the (i) initial principal balance of the Arizona Retail Portfolio Subordinate Companion Loan less (ii) any payments of principal (whether as principal prepayments or otherwise) allocated to, and received by, the holders of the Arizona Retail Portfolio Subordinate Companion Loan; or (B) any interest in the Arizona Retail Portfolio Subordinate Companion Loan is held by the related borrower or a borrower related party, or the related borrower or a borrower related party would otherwise be entitled to exercise the rights of the holder of the Arizona Retail Portfolio Subordinate Companion Loan as the Arizona Retail Portfolio Directing Holder.

 

Arizona Retail Portfolio Directing Holder”: The controlling note holder under the Arizona Retail Portfolio Intercreditor Agreement with respect to the Arizona Retail Portfolio Whole Loan.

 

Arizona Retail Portfolio Major Decision”: With respect to the Arizona Retail Portfolio Whole Loan, shall mean the following:

 

(i)          any proposed or actual foreclosure upon or comparable conversion (which shall include acquisition of any related REO Property) of the ownership of all or a portion of the Arizona Retail Portfolio Mortgaged Properties that comes into and continues in default;

 

(i)          any modification, consent to a modification or waiver of any monetary term (other than late fees and default interest) or material non-monetary term (including, without limitation, the timing of payments and acceptance of discounted payoffs) of the Arizona Retail Portfolio Whole Loan;

 

(ii)         if the Arizona Retail Portfolio Whole Loan is not a Specially Serviced Loan, any extension of the maturity date of the Arizona Retail Portfolio Whole Loan;

 

(iii)        following a default or an event of default with respect to the Arizona Retail Portfolio Whole Loan, any exercise of remedies, including the acceleration of the Arizona Retail Portfolio Whole Loan or initiation of any proceedings, judicial or otherwise, under the related Loan Documents;

 

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(iv)        any sale of the note evidencing the Arizona Retail Portfolio Mortgage Loan (if it is a Defaulted Loan) and the note evidencing the Arizona Retail Portfolio Subordinate Companion Loan, or the related REO Property (other than in connection with the termination of the Issuing Entity) for less than the applicable Purchase Price;

 

(v)         any determination to bring the Arizona Retail Portfolio Whole Loan or related REO Property, as the case may be, into compliance with applicable environmental laws or to otherwise address hazardous material located at the Arizona Retail Portfolio Mortgaged Property or related REO Property;

 

(vi)        any release of material collateral or any acceptance of substitute or additional collateral for the Arizona Retail Portfolio Whole Loan or any consent to either of the foregoing, other than if required pursuant to the specific terms of the related Loan Documents and for which there is no lender discretion;

 

(vii)       any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to the Arizona Retail Portfolio Whole Loan or any consent to such a waiver or consent to a transfer of any Arizona Retail Portfolio Mortgaged Property or interests in the borrower or consent to the incurrence of additional debt, other than as may be effected without the consent of the lender under the Loan Documents;

 

(viii)      any entry into, amendment, modification or termination of any property or asset management agreement with respect to any Arizona Retail Portfolio Mortgaged Property, including, without limitation, approval of the termination of a manager and appointment of a new property manager;

 

(ix)        if the Arizona Retail Portfolio Whole Loan is a Specially Serviced Loan, releases of any material amounts from any escrow accounts, reserve funds or letters of credit, in each case, held as performance escrows or reserves, other than those required pursuant to the specific terms of the related Loan Documents and for which there is no lender discretion;

 

(x)         any acceptance of an assumption agreement or any other agreement permitting a transfer of interests in the borrower or guarantor under the Arizona Retail Portfolio Whole Loan, releasing such borrower or guarantor from liability under the Arizona Retail Portfolio Whole Loan other than pursuant to the specific terms of the Arizona Retail Portfolio Whole Loan and for which there is no lender discretion;

 

(xi)        if the Arizona Retail Portfolio Whole Loan is a Specially Serviced Loan, any determination of an Acceptable Insurance Default;

 

(xii)       any modification, waiver or amendment of any lease, the execution of any new lease or the granting of a subordination and non-disturbance or attornment agreement in connection with any lease at any Arizona Retail Portfolio Mortgaged Property if (A) the lease involves a ground lease or lease of an outparcel or affects an area greater than or equal to the lesser of (I) 30% of the net rentable area of the improvements at such Arizona Retail Portfolio Mortgaged Property and (II) 30,000 square feet of the

 

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improvements at such Arizona Retail Portfolio Mortgaged Property and (B) such transaction either is not a routine leasing matter or such transaction relates to the Arizona Retail Portfolio Whole Loan if it is a Specially Serviced Loan;

 

(xiii)      any consent to incurrence of additional debt by the borrower under the Arizona Retail Portfolio Whole Loan or mezzanine debt by a direct or indirect parent of the borrower, to the extent the lender’s approval is required under the related Loan Documents;

 

(xiv)      if the Arizona Retail Portfolio Whole Loan is a Specially Serviced Loan, approval of easements that materially affect the use or value of any Arizona Retail Portfolio Mortgaged Property, or the borrower’s ability to make any payments, with respect to the Arizona Retail Portfolio Whole Loan;

 

(xv)       if the Arizona Retail Portfolio Whole Loan is a Specially Serviced Loan, agreeing to any modification of the type of defeasance collateral required under the Loan Documents such that defeasance collateral other than direct, non-callable obligations of the United States of America would be permitted;

 

(xvi)      determining whether to cure any default by the borrower under a ground lease or permit any ground lease modification, amendment or subordination, non-disturbance and attornment agreement or entry into a new ground lease;

 

(xvii)     approval of any waiver regarding the receipt of financial statements (other than immaterial timing waivers including late financial statements which in no event relieve the borrower of the obligation to provide financial statements on at least a quarterly basis);

 

(xviii)    any filing of a bankruptcy or similar action against the borrower or guarantor under the Arizona Retail Portfolio Whole Loan or the election of any action in a bankruptcy or insolvency proceeding to seek relief from the automatic stay or dismissal of a bankruptcy filing or voting for or opposing a plan of reorganization, seeking or opposing an order for adequate protection, adequate assurance, a Section 363 sale, order shortening time or similar motion of procedure in an insolvency proceeding or making an Section 1111(b)(2) election on behalf of the Arizona Retail Portfolio Whole Loan Noteholders;

 

(xix)      approval of the annual budget to the extent the lender’s consent is required under the related loan agreement;

 

(xx)       approval of (1) any replacement or substitution of a “Control Party” (as defined in the related loan agreement), and (2) any “Acceptable Replacement Guarantor” (as defined in the related loan agreement);

 

(xxi)      any material modification, waiver or amendment of a guaranty related to the Arizona Retail Portfolio Whole Loan;

 

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(xxii)      any approval of any casualty insurance settlements related to any Arizona Retail Portfolio Mortgaged Property, to the extent the lender’s approval is required under the related loan agreement;

 

(xxiii)     any approval to any material amendment, modification or waiver of any tenancy-in-common covenants and/or restrictions set forth in the related Loan Documents and any election of tenancy-in-common “roll up” rights for the benefit of lender under the Loan Documents; and

 

(xxiv)     any amendment, modification or termination of any operating agreements and tenancy-in-common agreement of the borrower, to the extent lender’s consent is required under the Loan Documents

  

provided that during any Arizona Retail Portfolio Control Appraisal Period, “Arizona Retail Portfolio Major Decisions” shall mean the list of Major Decisions as defined in this Agreement.

 

Arizona Retail Portfolio Mortgage Loan”: As defined in the Preliminary Statement.

 

Arizona Retail Portfolio Subordinate Companion Loan”: As defined in the Preliminary Statement.

 

Arizona Retail Portfolio Whole Loan”: The Arizona Retail Portfolio Companion Loan, together with the Arizona Retail Portfolio Mortgage Loan. References herein to the Arizona Retail Portfolio Whole Loan shall be construed to refer to the aggregate indebtedness under the related notes with respect to the Arizona Retail Portfolio Mortgage Loan and the Arizona Retail Portfolio Companion Loan.

 

Asset-Level Basis”: Only as used in connection with the Operating Advisor Annual Report, the term “asset-level basis” refers to the Special Servicer’s performance of its duties with respect to Specially Serviced Loans (and, after the occurrence and continuance of an Operating Advisor Consultation Event, with respect to Major Decisions on non-Specially Serviced Loans and Serviced Companion Loans) under this Agreement taking into account the Special Servicer’s specific duties under this Agreement as well as the extent to which those duties were performed in accordance with the Servicing Standard, with reasonable consideration by the operating advisor of any Assessment of Compliance, Attestation Report, Major Decision Reporting Package (after the occurrence and during the continuance of an Operating Advisor Consultation Event), Asset Status Report (after the occurrence and during the continuance of an Operating Advisor Consultation Event), Final Asset Status Report and any other information, in each case delivered to the operating advisor by the Special Servicer (other than any communications between the Directing Holder and the Special Servicer that would be Privileged Information) pursuant to this Agreement.

 

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Asset Representations Reviewer”: Park Bridge Lender Services LLC, a New York limited liability company, or its successor in interest, or any successor Asset Representations Reviewer appointed as herein provided.

 

Asset Representations Reviewer Asset Review Fee”: As defined in Section 11.02(a).

 

Asset Representations Reviewer Fee Cap”: As defined in Section 11.02(a).

 

Asset Representations Reviewer Surveillance Personnel”: The divisions and individuals of the Asset Representations Reviewer who are involved in the performance of the duties of the Asset Representations Reviewer under this Agreement.

 

Asset Representations Reviewer Termination Event”: As defined in Section 11.05(a).

 

Asset Review”: A review of the compliance of each Delinquent Mortgage 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 JJ hereto.

 

Asset Review Notice”: As defined in Section 11.01(b)(i).

 

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 attached hereto as Exhibit HH.

 

Asset Review Report Summary”: As defined in Section 11.01(a)(ix), a summary report setting forth the conclusions of an Asset Review Report substantially in the form attached hereto as Exhibit II.

 

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 Mortgage Loans or (2)(A) prior to and including the second anniversary of the Closing Date, at least 10 Mortgage Loans are Delinquent Mortgage Loans as of the end of the

 

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applicable Collection Period and the outstanding principal balance of such Delinquent Mortgage Loans in the aggregate constitutes at least 15.0% 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, or (B) after the second anniversary of the Closing Date, at least 15 Mortgage Loans are Delinquent Mortgage Loans as of the end of the applicable Collection Period and the aggregate outstanding principal balance of such Delinquent Mortgage 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 11.01(a).

 

Asset Status Report”: As defined in Section 3.23(e) of this Agreement.

 

Assignment of Leases, Rents and Profits”: With respect to any Mortgaged Property, any assignment of leases, rents and profits or similar agreement executed by the Borrower, assigning to the mortgagee all of the income, rents and profits derived from the ownership, operation, leasing or 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 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 (excluding, for purposes of any P&I Advances, the portion allocable to any related Companion 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 on the related Due Date based on the constant Periodic Payment or the original amortization schedule of such Mortgage Loan (as calculated with interest at the related Mortgage Rate) (if any), assuming such Balloon Payment had not become due, after giving effect to any prior modification, a default or a bankruptcy modification (or similar proceeding), and (b) interest on the Stated Principal Balance of such Mortgage Loan or REO Loan (excluding, for purposes of any P&I Advances, the portion allocable to any related Companion Loan) at its applicable Mortgage Rate (net of the related Servicing Fee Rate (other than, in the case of any Non-Serviced Mortgage Loan, the servicing fee rate pursuant to the related Other Pooling and Servicing Agreement)).

 

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Assumption Fees”: Any fees (other than assumption application fees) collected by the Master Servicer or the Special Servicer in connection with an assumption of a Serviced Mortgage Loan and any related Serviced Companion Loan or related substitution of a Borrower (or an interest therein) thereunder (in each case, as permitted or set forth in the related Loan Documents or under the provisions of this Agreement).

 

Authenticating Agent”: Any authenticating agent appointed by the Certificate Administrator pursuant to Section 3.18 of this Agreement.

 

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

 

(a)                the aggregate amount of all cash received on the Mortgage Loans (in the case of any Non-Serviced Mortgage Loan, only to the extent received by the Trust pursuant to the related Other Pooling and Servicing Agreement and/or the related Non-Serviced Intercreditor Agreement) (including the portion of Loss of Value Payments deposited into the Collection Account pursuant to Section 3.06(e) of this Agreement) and any REO Property (including Compensating Interest Payments with respect to the Mortgage Loans required to be deposited by the Master Servicer pursuant to Section 3.17(c)) on deposit in the Collection Account (in each case, exclusive of any amount on deposit in the Collection Account that is held for the benefit of the Companion Loan Noteholders), as of the Master Servicer Remittance Date, exclusive of (without duplication):

 

(i)            all Periodic Payments and Balloon Payments paid by the Borrowers that are due on a Due Date (without regard to grace periods) after the end of the related Collection Period (without regard to grace periods), excluding Excess Interest and interest relating to periods prior to, but due after, the Cut-off Date;

 

(ii)           all unscheduled payments of principal (including Principal Prepayments (together with any related payments of interest allocable to the period following the Due Date for the related Mortgage Loan during the related Collection Period)), unscheduled interest, Liquidation Proceeds, Insurance Proceeds or Condemnation Proceeds and other unscheduled recoveries received subsequent to the related Determination Date (or, with respect to voluntary prepayments of principal of each Mortgage Loan with a Due Date occurring after the related Determination Date, subsequent to the related Due Date) allocable to the Mortgage Loans;

 

(iii)          all amounts payable or reimbursable to any Person from the Collection Account pursuant to clauses (ii) through (xv), inclusive, of Section 3.06(a) of this Agreement;

 

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(iv)          with respect to each Actual/360 Loan and any Distribution Date in (1) each February and (2) any January occurring in a year that is not a leap year (unless, in either case, such Distribution Date is the final Distribution Date), an amount equal to one day of interest on the Stated Principal Balance of such Mortgage Loan as of the close of business on the Distribution Date in the month preceding the month in which the subject Distribution Date occurs at the related Net Mortgage Rate, to the extent such amounts are to be deposited in the Interest Reserve Account and held for future distribution pursuant to Section 3.05(e) of this Agreement;

 

(v)           all Excess Interest allocable to the Mortgage Loans;

 

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

 

(vii)         all amounts deposited in the Collection Account or the Lower-Tier Distribution Account, as the case may be, in error; and

 

(viii)        all Penalty Charges retained in the Collection Account pursuant to Section 3.05(a)(vii) of this Agreement; and

 

(b)               if and to the extent not already included in clause (a) hereof, the aggregate amount transferred on or before the applicable Determination Date from the REO Account allocable to the Mortgage Loans to the Collection Account for such Distribution Date pursuant to Section 3.15(b);

 

(c)               P&I Advances made by the Master Servicer or the Trustee, as applicable, for such Distribution Date (net of the related Certificate Administrator/Trustee Fee with respect to the Mortgage Loans for which such P&I Advances are made);

 

(d)               with respect to each Actual/360 Loan and for the Distribution Date occurring in each March (or February if the final Distribution Date occurs in such month), the Withheld Amounts remitted to the Lower-Tier Distribution Account pursuant to Section 3.05(e) of this Agreement; and

 

(e)               the aggregate amount of Gain-on-Sale Proceeds transferred to the Lower Tier Distribution Account from the Gain-on-Sale Reserve Account for distribution on the subject Distribution Date.

 

Notwithstanding the investment of funds held in the Collection Account or the Lower-Tier Distribution Account pursuant to Section 3.07 of this Agreement, for purposes of calculating the Available Funds, the amounts so invested shall be deemed to remain on deposit in such account.

 

Balloon Loan”: Any Mortgage Loan or Serviced Whole Loan that requires a payment of principal on the maturity date in excess of its constant Periodic Payment.

 

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Balloon Payment”: With respect to each Balloon Loan, the scheduled payment of principal due on the Maturity Date (less principal included in the applicable amortization schedule or scheduled Periodic Payment).

 

Base Interest Fraction”: With respect to any Principal Prepayment on any Mortgage Loan and any of the Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class A-5, Class A-M, Class B, Class C and Class D Certificates, a fraction (not greater than one) (a) whose numerator is the greater of zero and the amount, if any, by which (i) the Pass-Through Rate on such Class of Certificates exceeds (ii) the yield rate (as provided by the Master Servicer) used in calculating the Prepayment Premium or Yield Maintenance Charge, as applicable, with respect to such Principal Prepayment and (b) whose denominator is the amount, if any, by which (i) the Mortgage Rate on such Mortgage Loan exceeds (ii) the yield rate (as provided by the Master Servicer) used in calculating the Prepayment Premium or Yield Maintenance Charge, as applicable, with respect to such Principal Prepayment; provided that if such yield rate is greater than or equal to the Mortgage Rate on such Mortgage Loan, then the Base Interest Fraction shall be zero; provided, further, that if such yield rate is greater than or equal to the Mortgage Rate on such Mortgage Loan, but less than the Pass-Through Rate described in clause (a)(i) above, then the Base Interest Fraction shall be one.

 

To the extent that the “yield rate” referred to in the immediately preceding paragraph to be provided by the Master Servicer is not provided in the related Loan Documents, such “yield rate” shall be, when compounded monthly, equivalent to the yield, on the U.S. Treasury primary issue with a maturity date closest to the Maturity Date or Anticipated Repayment Date, as applicable, for the prepaid Mortgage Loan. In the event that there are: (a) two or more U.S. Treasury issues with the same coupon the issue with the lower yield shall be selected and (b) two or more U.S. Treasury issues with maturity dates equally close to the Maturity Date or Anticipated Repayment Date, as applicable, for such prepaid Mortgage Loan, the issue with the earlier maturity date shall be selected.

 

Bid Allocation”: With respect to the Master Servicer and each Sub-Servicer therefor and the proceeds of any bid pursuant to Section 7.01(a) of this Agreement, the amount of such proceeds (net of any expenses incurred in connection with such bid and the transfer of servicing), multiplied by a fraction equal to (a) the Servicing Fee Amount for the Master Servicer or such Sub-Servicer therefor, as the case may be, as of such date of determination, over (b) the aggregate of the Servicing Fee Amounts for the Master Servicer and all Sub-Servicers therefor as of such date of determination.

 

Book-Entry Certificate” shall mean any Certificate registered in the name of the Depository or its nominee.

 

Borrower”: With respect to any Mortgage Loan, Companion Loan or Serviced Whole Loan, any obligor or obligors on any related Mortgage Note or Mortgage Notes, including in connection with a Mortgage Loan, Companion Loan or Serviced Whole Loan that utilizes an indemnity deed of trust (“IDOT”) structure, the borrower and the Mortgaged Property owner / payment guarantor / mortgagor, individually and collectively, as the context may require.

 

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Borrower Accounts”: As defined in Section 3.07(a) of this Agreement.

 

Borrower Party”: A borrower, a mortgagor, a manager of a Mortgaged Property, Restricted Mezzanine Holder or any Borrower Party Affiliate.

 

Borrower Party Affiliate”: With respect to a borrower, a mortgagor, a manager of a Mortgaged Property or a Restricted Mezzanine Holder, (a) any other Person controlling or controlled by or under common control with such borrower, mortgagor, manager or Restricted Mezzanine Holder, as applicable, (b) solely with respect to the 10 largest Mortgage Loans by Stated Principal Balance, any other Person owning, directly or indirectly, 25% or more of the beneficial interests in such borrower, mortgagor or manager, as applicable, or (c) any other Person owning, directly or indirectly, 25% or more of the beneficial interests in such Restricted Mezzanine Holder. 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”: As defined in Section 2.03(e) of this Agreement.

 

Burbank Office Portfolio Companion Loans”: As defined in the Preliminary Statement.

 

Burbank Office Portfolio Companion Loans”: As defined in the Preliminary Statement.

 

Burbank Office Portfolio Subordinate Companion Loans”: As defined in the Preliminary Statement.

 

Burbank Office Portfolio Mortgage Loan”: As defined in the Preliminary Statement.

 

Burbank Office Portfolio Service Providers”: With respect to the Burbank Office Portfolio Companion Loans, the related Other Trustee, Other Servicer, Other Special Servicer and any related sub-servicer, as applicable, and any other Person that makes principal and/or interest advances in respect of such mortgage loan pursuant to the related Other Pooling and Servicing Agreement.

 

Burbank Office Portfolio Whole Loan”: The Burbank Office Portfolio Companion Loans, together with the Burbank Office Portfolio Mortgage Loan. References herein to the Burbank Office Portfolio Whole Loan shall be construed to refer to the aggregate indebtedness under the related notes with respect to the Burbank Office Portfolio Mortgage Loan and the Burbank Office Portfolio Companion Loans.

 

Business Day”: Any day other than (i) a Saturday or a Sunday, (ii) a legal holiday in New York, New York or the principal cities in which the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee or the

 

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Certificate Administrator conduct servicing, trust administration or surveillance operations or (iii) a day on which the Federal Reserve Bank of New York or banking institutions or savings associations in New York, New York, Charlotte, North Carolina, Oakland, California, Cleveland, Ohio, Kansas City, Missouri, Pittsburgh, Pennsylvania, Overland Park, Kansas, Missouri, Minneapolis, Minnesota, or Columbia, Maryland, or the principal cities in which the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee or the Certificate Administrator conduct servicing, trust administration or surveillance operations are authorized or obligated by law or executive order to be closed.

 

BXP 2017-CC Trust and Servicing Agreement”: The trust and servicing agreement, dated as of August 9, 2017 between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as servicer, AEGON USA Realty Advisors, LLC, as special servicer, Wells Fargo Bank, National Association, as certificate administrator and as custodian, and Wilmington Trust, National Association, as trustee, and entered into in connection with the BXP 2017-CC transaction.

 

Calculation Rate”: A discount rate appropriate for the type of cash flows being discounted, namely (i) for principal and interest payment on the Mortgage Loan or Serviced Companion Loan or sale of a Defaulted Loan, the highest of (1) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrowers on similar non-defaulted debt of the Borrowers as of such date of determination, (2) the applicable Mortgage Rate and (3) the yield on 10-year U.S. treasuries as of such date of determination and (ii) for all other cash flows, including property cash flow, the “discount rate” set forth in the most recent related Appraisal (or Updated Appraisal).

 

Cash Collateral Account”: With respect to any Mortgage Loan or Serviced Whole Loan that has a Lock-Box Account, any account or accounts created pursuant to the related Mortgage, Loan Agreement, Cash Collateral Account Agreement or other Loan Document into which the Lock-Box Account monies are swept on a regular basis for the benefit of the Trustee, on behalf of the Certificateholders, as successor to the related Mortgage Loan Seller. Any Cash Collateral Account shall be beneficially owned for federal income tax purposes by the Person who is entitled to receive all reinvestment income or gain thereon in accordance with the terms and provisions of the related Loan Documents and Section 3.07 of this Agreement, which Person shall be taxed on all reinvestment income or gain thereon in accordance with the terms of the related Mortgage Loan or Serviced Whole Loan. The Master Servicer shall be permitted to make withdrawals therefrom for deposit into the Collection Account or the applicable Serviced Whole Loan Collection Account, as applicable. To the extent not inconsistent with the terms of the related Loan Documents, each such Cash Collateral Account shall be an Eligible Account.

 

Cash Collateral Account Agreement”: With respect to any Mortgage Loan or Serviced Whole Loan, the cash collateral account agreement, if any, between the related Originator and the related Borrower, pursuant to which the related Cash Collateral Account, if any, may have been established.

 

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Certificate”: Any Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class A-5, Class X-A, Class X-B, Class X-D, Class A-M, Class B, Class C, Class D, Class E-RR, Class F-RR, Class G-RR, Class H-RR, Class S and Class R Certificate issued, authenticated and delivered hereunder.

 

Certificate Administrator”: Wells Fargo Bank, National Association, a national banking association, in its capacity as Certificate Administrator, or its successor in interest, or any successor Certificate Administrator appointed as herein provided. Wells Fargo Bank, National Association will perform its obligations as Certificate Administrator hereunder through its Corporate Trust Services division.

 

Certificate Administrator Personnel”: The divisions and individuals of the Certificate Administrator who are involved in the performance of the duties of the Certificate Administrator under this Agreement.

 

Certificate Administrator/Trustee Fee”: With respect to each Mortgage Loan and for any Distribution Date, an amount per Interest Accrual Period equal to the product of (i) the Certificate Administrator/Trustee Fee Rate (adjusted to a monthly rate) multiplied by (ii) the Stated Principal Balance of such Mortgage Loan as of the Due Date in the immediately preceding Collection Period (without giving effect to payments of principal on such Mortgage Loan on such Due Date). The Certificate Administrator/Trustee Fee shall be calculated in accordance with the provisions of Section 1.02(a) of this Agreement. For the avoidance of doubt, the Certificate Administrator/Trustee Fee with respect to each Mortgage Loan shall be payable from the Lower-Tier REMIC.

 

Certificate Administrator/Trustee Fee Rate”: A rate equal to 0.0064% per annum.

 

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

 

Certificate Balance”: With respect to any Class of Principal Balance Certificates, (a) on or prior to the first Distribution Date, an amount equal to the aggregate initial 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, an amount equal to the Certificate Balance of such Class on the Distribution Date immediately prior to such date of determination less any distributions allocable to principal and any allocations of Realized Losses made thereon on such prior Distribution Date.

 

Certificate Custodian”: Initially, the Certificate Administrator; thereafter, any other Certificate Custodian acceptable to the Depository and selected by the Certificate Administrator.

 

Certificate Factor”: With respect to any Class of Principal Balance Certificates or Class X Certificates, as of any date of determination, a fraction, expressed as a decimal carried to eight places, the numerator of which is the then related Certificate Balance or the Notional

 

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Amount, as the case may be, and the denominator of which is the related initial Certificate Balance or the initial Notional Amount, as the case may be.

 

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

 

Certificate Register” and “Certificate Registrar”: The register maintained and the registrar appointed pursuant to Section 5.02 of this Agreement.

 

Certificateholder”: The Person in whose name a Certificate is registered in the Certificate Register or any beneficial owner thereof; provided, however, that 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 (i) the Master Servicer, the Special Servicer, any Non-Conflicted Special Servicer, the Trustee, the Certificate Administrator, the Depositor, any Mortgage Loan Seller or any Affiliate of any of such Persons or (ii) any Borrower Party, in each case shall be deemed not to be outstanding (provided that notwithstanding the foregoing, any Controlling Class Certificates owned by a Conflicted Controlling Class Holder shall not be deemed to be outstanding as to such Conflicted Controlling Class Holder solely with respect to any related Conflicted Controlling Class Loan; and provided, further, that any Controlling Class Certificates owned by the Special Servicer or an Affiliate thereof shall not be deemed to be outstanding as to the Special Servicer or such Affiliate solely with respect to any related Conflicted Special Servicer Mortgage Loan), and the 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, approval, waiver or take any such action has been obtained; provided, however, that the foregoing restrictions shall not apply in the case of the Master Servicer, the Special Servicer, any Non-Conflicted Special Servicer, the Trustee, the Certificate Administrator, the Depositor, any Mortgage Loan Seller or any Affiliate of any of such Persons unless such consent, approval or waiver sought from such party would in any way increase its compensation or limit its obligations in the named capacities hereunder or waive a Servicer Termination Event or trigger an Asset Review with respect to such Mortgage Loan; provided, further that so long as there is no Servicer Termination Event with respect to the Master Servicer or the Special Servicer, the Master Servicer and the Special Servicer or such Affiliate of either shall be entitled to exercise such Voting Rights with respect to any issue which could reasonably be believed to adversely affect such party’s compensation or increase its obligations or liabilities hereunder; and provided, further that such restrictions shall not apply to (i) the exercise of the Special Servicer’s, the Master Servicer’s or any Mortgage Loan Seller’s rights, if any, or any of their Affiliates as a member of the Controlling Class or (ii) any Affiliate of the Depositor, the Master Servicer, the Special Servicer, the Trustee 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

 

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Depositor, the Master Servicer, the Special Servicer, the Trustee or the Certificate Administrator, as applicable, and any Certificates beneficially owned by such Affiliate shall be deemed to be outstanding. The Trustee and the Certificate Administrator shall each be entitled to request and rely upon a certificate of the Master 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.

 

Certificateholder Quorum”: In connection with any solicitation of votes in connection with the replacement of the Special Servicer pursuant to Section 3.22(d) of this Agreement or the Asset Representations Reviewer pursuant to Section 11.05(b) of this Agreement, the holders of Certificates (other than the Class X, Class S and Class R Certificates) evidencing at least 50% of the aggregate Voting Rights (taking into account the application of any Appraisal Reduction Amounts to notionally reduce the Certificate Balances of the Certificates pursuant to Section 4.08 of this Agreement, except in the case of the termination of the Asset Representations Reviewer pursuant to Section 11.05(b) of this Agreement) of all Certificates (other than the Class X, Class S and Class R Certificates) on an aggregate basis.

 

Certificateholder Repurchase Request”: As defined in Section 2.03(k)(i) of this Agreement.

 

Certification Parties”: As defined in Section 10.08 of this Agreement.

 

Certifying Certificateholder”: A Certificateholder or Certificate Owner of a Certificate that has provided the Certificate Administrator with an executed Investor Certification.

 

Certifying Person”: As defined in Section 10.08 of this Agreement.

 

Certifying Servicer”: As defined in Section 10.11 of this Agreement.

 

CGCMT 2017-P8 Pooling and Servicing Agreement”: The pooling and servicing agreement, dated as of September 1, 2017, between Citigroup Commercial Mortgage Securities Inc., as depositor, Wells Fargo Bank, National Association, as master servicer, KeyBank National Association, as special servicer, Wilmington Trust, National Association, as trustee, Citibank, N.A., as certificate administrator, and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, and entered into in connection with the creation of the CGCMT 2017-P8 transaction.

 

Class”: All of the Certificates that collectively bear the same alphabetic or alphanumeric Class designation and each Lower-Tier Regular Interest.

 

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Class A-1 Certificate”: Any one of the Certificates with a “Class A-1” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class A-1 Pass-Through Rate”: A per annum rate equal to 2.168%.

 

Class A-2 Certificate”: Any one of the Certificates with a “Class A-2” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class A-2 Pass-Through Rate”: A per annum rate equal to 3.250%.

 

Class A-3 Certificate”: Any one of the Certificates with a “Class A-3” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class A-3 Pass-Through Rate”: A per annum rate equal to 3.104%.

 

Class A-4 Certificate”: Any one of the Certificates with a “Class A-4” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class A-4 Pass-Through Rate”: A per annum rate equal to 3.190%.

 

Class A-5 Certificate”: Any one of the Certificates with a “Class A-5” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class A-5 Pass-Through Rate”: A per annum rate equal to 3.456%.

 

Class A-M Certificate”: Any one of the Certificates with a “Class A-M” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class A-M Pass-Through Rate”: A per annum rate equal to the lesser of the (i) WAC Rate and (ii) 3.709%.

 

Class A-SB Certificate”: Any one of the Certificates with a “Class A-SB” designation on the face thereof, executed and authenticated by the Certificate Administrator or

 

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the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class A-SB Pass-Through Rate”: A per annum rate equal to 3.332%.

 

Class B Certificate”: Any one of the Certificates with a “Class B” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class B Pass-Through Rate”: A per annum rate equal to the lesser of the (i) WAC Rate and (ii) 3.911%.

 

Class C Certificate”: Any one of the Certificates with a “Class C” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class C Pass-Through Rate”: A per annum rate equal to (i) the WAC Rate minus (ii) 0.00875%, but in any case, not less than 0.000%.

 

Class D Certificate”: Any one of the Certificates with a “Class D” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class D Pass-Through Rate”: A per annum rate equal to 2.750%.

 

Class E-RR Certificate”: Any one of the Certificates with a “Class E-RR” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class E-RR Pass-Through Rate”: A per annum rate equal to the WAC Rate.

 

Class F-RR Certificate”: Any one of the Certificates with a “Class F-RR” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class F-RR Pass-Through Rate”: A per annum rate equal to the WAC Rate.

 

Class G-RR Certificate”: Any one of the Certificates with a “Class G-RR” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

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Class G-RR Pass-Through Rate”: A per annum rate equal to the WAC Rate.

 

Class H-RR Certificate”: Any one of the Certificates with a “Class H-RR” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class H-RR Pass-Through Rate”: A per annum rate equal to the WAC Rate.

 

Class LA-1 Interest,” “Class LA-2 Interest,” “Class LA-3 Interest,” “Class LA-SB Interest,” “Class LA-4 Interest,” “Class LA-5 Interest,” “Class LA-M Interest,” “Class LB Interest,” “Class LC Interest,” “Class LD Interest,” “Class LE-RR Interest,” “Class LF-RR Interest,” “Class LG-RR Interest” and “Class LH-RR Interest”: Each, a regular interest in the Lower-Tier REMIC entitled to monthly distributions payable thereto pursuant to Section 4.01 of this Agreement.

 

Class LTR Interest”: The sole class of “residual interest” in the Lower-Tier REMIC, which will be represented by the Class R Certificates.

 

Class R Certificate”: Any one of the Certificates with a “Class R” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement. The Class R Certificates have no Pass-Through Rate, Certificate Balance or Notional Amount. The Class R Certificates represent the Class LTR Interest and the Class UTR Interest.

 

Class S Certificate”: Any one of the Certificates with a “Class S” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement. The Class S Certificates represent undivided beneficial interests in the Class S Specific Grantor Trust Assets.

 

Class S Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of Excess Interest collected on the ARD Loans and amounts held from time to time in the Excess Interest Distribution Account.

 

Class UTR Interest”: The sole class of “residual interest” in the Upper-Tier REMIC, which will be represented by the Class R Certificates.

 

Class X Certificates”: The Class X-A, Class X-B and Class X-D Certificates, collectively.

 

Class X Component”: Each of the Class X-A Components, Class X-B Component and Class X-D Components.

 

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Class X Component Notional Amount”: With respect to each Class X Component and any date of determination, an amount equal to the then Lower-Tier Principal Balance of its Corresponding Lower-Tier Regular Interest.

 

Class X Notional Amount”: The Class X-A Notional Amount, the Class X-B Notional Amount or the Class X-D Notional Amount, as applicable and as the context may require.

 

Class X-A Certificate”: Any one of the Certificates with a “Class X-A” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class X-A Components”: Each of Component XA-1, Component XA-2, Component XA-3, Component XA-SB, Component XA-4, Component XA-5 and Component XA-M.

 

Class X-A Notional Amount”: As of any date of determination, the sum of the then Class X Component Notional Amounts of all of the Class X-A Components.

 

Class X-A Pass-Through Rate”: With respect to any Distribution Date, the weighted average of the Class X-A Strip Rates for the respective Class X-A Components for such Distribution Date, weighted on the basis of the respective Class X Component Notional Amounts of such Components outstanding immediately prior to such Distribution Date. The Class X-A Pass-Through Rate for the initial Distribution Date is 0.985% per annum.

 

Class X-A Strip Rate”: With respect to any Class of Class X-A Components for any Distribution Date, the (i) the WAC Rate for such Distribution Date over (ii) the Pass-Through Rate for the Corresponding Certificates.

 

Class X-B Certificate”: Any one of the Certificates with a “Class X-B” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class X-B Component”: The Component XB.

 

Class X-B Notional Amount”: As of any date of determination, the then Class X Component Notional Amount of the Class X-B Component.

 

Class X-B Pass-Through Rate”: With respect to any Distribution Date, the Class X-B Strip Rate for the Class X-B Component for such Distribution Date. The Class X-B Pass-Through Rate for the initial Distribution Date is 0.367% per annum.

 

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Class X-B Strip Rate”: With respect to the Class X-B Component for any Distribution Date, the (i) the WAC Rate for such Distribution Date over (ii) the Pass-Through Rate for the Corresponding Certificates.

 

Class X-D Certificate”: Any one of the Certificates with a “Class X-D” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of the Exhibit set forth next to such Class in the Table of Exhibits of this Agreement.

 

Class X-D Component”: Each of Component XC and Component XD.

 

Class X-D Notional Amount”: As of any date of determination, the sum of the then Class X Component Notional Amounts of all of the Class X-D Components.

 

Class X-D Pass-Through Rate”: With respect to any Distribution Date, the weighted average of the Class X-D Strip Rates for the respective Class X-D Components for such Distribution Date, weighted on the basis of the respective Class X Component Notional Amounts of such Components outstanding immediately prior to such Distribution Date. The Class X-D Pass-Through Rate for the initial Distribution Date is 0.442% per annum.

 

Class X-D Strip Rate”: With respect to any Class of Class X-D Components for any Distribution Date, the (i) the WAC Rate for such Distribution Date over (ii) the Pass-Through Rate for the Corresponding Certificates.

 

Clearstream”: Clearstream Banking Luxembourg, a division of Clearstream International, société anonyme.

 

Cleveland East Companion Loan”: As defined in the Preliminary Statement.

 

Cleveland East Mortgage Loan”: As defined in the Preliminary Statement.

 

Cleveland East Service Providers”: With respect to the Cleveland East Companion Loan, the related Other Trustee, Other Servicer, Other Special Servicer and any related sub-servicer, as applicable, and any other Person that makes principal and/or interest advances in respect of such mortgage loan pursuant to any related Other Pooling and Servicing Agreement.

 

Cleveland East Whole Loan”: The Cleveland East Companion Loan, together with the Cleveland East Mortgage Loan. References herein to the Cleveland East Whole Loan shall be construed to refer to the aggregate indebtedness under the Cleveland East Mortgage Loan and the Cleveland East Companion Loan.

 

Closing Date”: November 30, 2017.

 

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Code”: The Internal Revenue Code of 1986, as amended from time to time, any successor statute thereto, and any temporary or final regulations of the United States Department of the Treasury promulgated pursuant thereto.

 

Collateral Deficiency Amount” With respect to any AB Modified Loan as of any date of determination, the excess of (i) the Stated Principal Balance of such AB Modified Loan (taking into account the related junior note(s) 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 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 Borrower 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 other escrows or reserves (in addition to any amounts set forth in the immediately preceding clause (y)) held by the lender in respect of such AB Modified Loan as of the date of such determination. The Certificate Administrator shall be entitled to conclusively rely on the Master Servicer’s calculation or determination of any Collateral Deficiency Amount.

 

Collection Account”: The trust account or accounts created and maintained by the Master Servicer pursuant to Section 3.05(a) of this Agreement, which shall be entitled “Wells Fargo Bank, National Association, as Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of Deutsche Mortgage & Asset Receiving Corporation, CD 2017-CD6 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2017-CD6 Collection Account” and which must be an Eligible Account.

 

Collection Period”: With respect to any Distribution Date and each Mortgage Loan (including any Companion Loan), the period that begins on the day immediately following the Due Date for such Mortgage Loan (including any Companion Loan) 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 (including any Companion Loan) had a Due Date in such preceding month and ending on and including the Due Date for such Mortgage Loan (including any related Companion Loan) occurring in the month in which that Distribution Date occurs. Notwithstanding the foregoing, in the event that the last day of a Collection Period (or applicable grace period) is not a business day, any Periodic Payments received with respect to Mortgage Loans (including any Companion Loan) relating to such Collection 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.

 

Colorado Center Companion Loans”: As defined in the Preliminary Statement.

 

Colorado Center Pari Passu Companion Loans”: As defined in the Preliminary Statement.

 

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Colorado Center Subordinate Companion Loans”: As defined in the Preliminary Statement.

 

Colorado Center Mortgage Loan”: As defined in the Preliminary Statement.

 

Colorado Center Service Providers”: With respect to the Colorado Center Companion Loans, the related Other Trustee, Other Servicer, Other Special Servicer and any related sub-servicer, as applicable, and any other Person that makes principal and/or interest advances in respect of such mortgage loan pursuant to the related Other Pooling and Servicing Agreement.

 

Colorado Center Whole Loan”: The Colorado Center Companion Loans, together with the Colorado Center Mortgage Loan. References herein to the Colorado Center Whole Loan shall be construed to refer to the aggregate indebtedness under the related notes with respect to the Colorado Center Mortgage Loan and the Colorado Center Companion Loans.

 

COMM 2017-COR2 Pooling and Servicing Agreement”: The pooling and servicing agreement, dated as of September 1, 2017, between Deutsche Mortgage & Asset Receiving Corporation, as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer and as special servicer, Wells Fargo Bank, National Association, as certificate administrator, custodian and trustee, and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer, and entered into in connection with the creation of the COMM 2017-COR2 transaction.

 

Commission”: The Securities and Exchange Commission.

 

Communication Request”: As defined in Section 5.05(a) of this Agreement.

 

Companion Loan”: A Serviced Companion Loan or Non-Serviced Companion Loan, as applicable and as the context may require.

 

Companion Loan Noteholder”: A holder of a Companion Loan.

 

Compensating Interest Payment”: An 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 or Serviced Pari Passu Companion Loans (in each case, other than (a) a Non-Serviced Mortgage Loan, (b) a Specially Serviced Loan or (c) a Mortgage Loan or Serviced Companion Loan with respect to which the Special Servicer has waived or amended the prepayment restrictions such that the related Borrower is not required to prepay on a Due Date or pay interest that would have accrued on the amount prepaid through and including the last day of the interest accrual period occurring following the date of such prepayment) for the related Distribution Date, and (ii) the aggregate of (A) the portion of its Master Servicing Fee (calculated for this purpose at 0.0025% (0.25 basis points) per annum) that is being paid in such Collection Period with respect to the Mortgage Loans or Serviced Pari Passu Companion Loans serviced by it (other than a Non-Serviced Mortgage Loan or a Specially Serviced Loan), (B) all Prepayment Interest Excess received by

 

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the Master Servicer during the related Collection Period on the Mortgage Loans or Serviced Pari Passu Companion Loans (other than a Non-Serviced Mortgage Loan or a Specially Serviced Loan) and (C) to the extent earned on principal prepayments, net investment earnings payable to the Master Servicer for such Collection Period received by the Master Servicer during such Collection Period with respect to the Mortgage Loan or any related Serviced Pari Passu Companion Loan, as applicable, subject to such prepayment; provided that if any Prepayment Interest Shortfall occurs with respect to any Mortgage Loan as a result of the Master Servicer’s failure to enforce the related Loan Documents (a “Prohibited Prepayment”) regarding principal prepayments (other than in connection with (a) a Specially Serviced Loan, (b) a Non-Serviced Mortgage Loan, (c) subsequent to a default under the related Loan Documents (provided that the Master Servicer reasonably believes that acceptance of such prepayment is consistent with the Servicing Standard), (d) at the request of or with the consent of the Special Servicer or, so long as a Control Termination Event has not occurred or is not continuing (other than with respect to the Mortgage Loans other than a Conflicted Loan or a Servicing Shift Whole Loan), the Directing Holder, (e) pursuant to applicable law or a court order, (f) in connection with the payment of Insurance and Condemnation Proceeds unless the Master Servicer did not apply the proceeds thereof in accordance with the terms of the related Loan Documents and such failure caused the shortfall or (g) a previously Specially Serviced Loan with respect to which the Special Servicer has waived or amended the prepayment restriction such that the related Borrower is not required to prepay on a Due Date or pay interest that would have accrued on the amount prepaid through and including the last day of the interest accrual period occurring following the date of such prepayment), 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 or Serviced Companion Loan, otherwise described in clause (i) above in connection with such Prohibited Prepayments. The Master Servicer’s obligation to pay the Compensating Interest Payment, and the rights of the Certificateholders to offset of the aggregate Prepayment Interest Shortfalls against those amounts, shall not be cumulative.

 

“Component XA-1”: One of the components of the Class X-A Certificates having a Class X Component Notional Amount equal to the then current Lower-Tier Principal Balance of the Class LA-1 Interest as of any date of determination.

 

“Component XA-2”: One of the components of the Class X-A Certificates having a Class X Component Notional Amount equal to the then current Lower-Tier Principal Balance of the Class LA-2 Interest as of any date of determination.

 

“Component XA-3”: One of the components of the Class X-A Certificates having a Class X Component Notional Amount equal to the then current Lower-Tier Principal Balance of the Class LA-3 Interest as of any date of determination.

 

“Component XA-4”: One of the components of the Class X-A Certificates having a Class X Component Notional Amount equal to the then current Lower-Tier Principal Balance of the Class LA-4 Interest as of any date of determination.

 

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“Component XA-5”: One of the components of the Class X-A Certificates having a Class X Component Notional Amount equal to the then current Lower-Tier Principal Balance of the Class LA-5 Interest as of any date of determination.

 

“Component XA-SB”: One of the components of the Class X-A Certificates having a Class X Component Notional Amount equal to the then current Lower-Tier Principal Balance of the Class LA-SB Interest as of any date of determination.

 

“Component XA-M”: One of the components of the Class X-A Certificates having a Class X Component Notional Amount equal to the then current Lower-Tier Principal Balance of the Class LA-M Interest as of any date of determination.

 

“Component XB”: The component of the Class X-B Certificates having a Class X Component Notional Amount equal to the then current Lower-Tier Principal Balance of the Class LB Interest as of any date of determination.

 

“Component XC”: One of the components of the Class X-D Certificates having a Class X Component Notional Amount equal to the then current Lower-Tier Principal Balance of the Class LC Interest as of any date of determination.

 

“Component XD”: One of the components of the Class X-D Certificates having a Class X Component Notional Amount equal to the then current Lower-Tier Principal Balance of the Class LD Interest as of any date of determination.

 

Condemnation Proceeds”: Any awards resulting from the full or partial condemnation or any eminent domain proceeding or any conveyance in lieu or in anticipation thereof with respect to a Mortgaged Property by or to any governmental, quasi-governmental authority or private entity with condemnation powers (other than amounts to be applied to the restoration, preservation or repair of such Mortgaged Property or released to the related Borrower in accordance with the terms of the REMIC Provisions and the applicable Loan Documents for the related Mortgage Loan or Serviced Whole Loan) or, if applicable, with respect to the Mortgaged Property securing a Serviced Whole Loan, any portion of such amounts payable to the holders of the applicable Mortgage Loan. With respect to the Mortgaged Property securing any Non-Serviced Mortgage Loan or Non-Serviced Companion Loan, only the portion of such amounts payable to the holder of the related Non-Serviced Mortgage Loan shall be included in Condemnation Proceeds).

 

Conflicted Controlling Class Holder”: With respect to any Conflicted Controlling Class Mortgage Loan, the Controlling Class Representative or any Controlling Class Certificateholder, as applicable, that is a Borrower Party with respect to such Conflicted Controlling Class Mortgage Loan. Immediately upon obtaining actual knowledge of any such party becoming a “Conflicted Controlling Class Holder”, the Controlling Class Representative or Controlling Class Certificateholder, as applicable, shall provide notice in the form of Exhibit L-1E hereto to the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator, which such notice shall be physically delivered in accordance with

 

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Section 11.05 of this Agreement and shall specifically identify the Conflicted Controlling Class Holder and the subject Conflicted Controlling Class Mortgage Loan. Additionally, any Conflicted Controlling Class Holder shall also send to the Certificate Administrator a notice substantially in the form of Exhibit L-1F hereto, which such notice shall provide each of the CTSLink User ID’s associated with such Conflicted Controlling Class Holder, and which such notice shall direct the Certificate Administrator to restrict such Conflicted Controlling Class Holder’s access to the Certificate Administrator’s Website as provided in this Agreement. As of the Closing Date, there are no Conflicted Controlling Class Holders related to the Trust.

 

Conflicted Controlling Class Mortgage Loan”: Any Mortgage Loan or Whole Loan with respect to which, as of any date of determination, the Controlling Class Representative or any Controlling Class Certificateholder is a Borrower Party. As of the Closing Date, there are no Conflicted Controlling Class Mortgage Loans related to the Trust.

 

Conflicted Information”: With respect to any Conflicted Controlling Class Mortgage Loan, any information and reports solely relating to such Conflicted Controlling Class Mortgage Loan(s) and/or the related Mortgaged Properties that is segregated on the Certificate Administrator’s Website, including, without limitation, any Asset Status Reports, Final Asset Status Reports or summaries thereof, or any appraisals, inspection reports (related to Specially Serviced Loans conducted by the Special Servicer or the Non-Conflicted Special Servicer), recoverability officer’s certificates, the Operating Advisor Annual Reports, any determination of the Special Servicer’s net present value calculation, any appraisal reduction amount calculations, environmental assessments, seismic reports and property condition reports and such other information and reports designated as Conflicted Information (other than such information with respect to such Conflicted Controlling Class Mortgage Loan(s) that is aggregated with information of other Mortgage Loans at a pool level) by the Master Servicer, the Special Servicer and the Operating Advisor, as the case may be. 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 Conflicted Controlling Class Mortgage Loan) and any Schedule AL Additional File shall not be considered “Conflicted Information”. Any Conflicted Information to be delivered to the Certificate Administrator by the Master Servicer, the Special Servicer or the Operating Advisor shall be delivered in accordance with Section 3.32 hereof. For the avoidance of doubt, the Certificate Administrator’s obligation to segregate any information delivered to it under the “Conflicted Information” tab on the Certificate Administrator’s Website shall be triggered solely by such information being delivered in the manner provided in Section 3.32 hereof.

 

Conflicted Loan”: With respect to the Controlling Class Representative, any Mortgage Loan or Whole Loan with respect to which, as of any date of determination, the Controlling Class Representative or any Majority Controlling Class Certificateholder is a Borrower Party. For the avoidance of doubt, any Conflicted Loan as to either the Controlling Class Representative or any Majority Controlling Class Certificateholder is also a Conflicted Controlling Class Mortgage Loan. As of the Closing Date, there are no Conflicted Loans related to the Trust.

 

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“Conflicted Special Servicer Mortgage Loan”: Any Serviced Mortgage Loan and any related Serviced Companion Loan with respect to which, as of any date of determination, the Special Servicer has obtained knowledge that it is a Borrower Party.

 

Consultation Termination Event”: At any date at which (a) (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 a Class of the Class E-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 3.29(g); and (b) with respect to the Arizona Retail Portfolio Whole Loan, when a Arizona Retail Portfolio Control Appraisal Period has occurred and is continuing, (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 a Class of the Class E-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 3.29(g); provided that prior to the related Servicing Shift Securitization Date, except as provided in the last sentence of this definition, no Consultation Termination Event may occur with respect to the Loan-Specific Directing Holder related to any Servicing Shift Whole Loan and the term “Consultation Termination Event” shall not be applicable to the Loan-Specific Directing Holder related to such Servicing Shift Whole Loan; provided, further, that no Consultation Termination Event resulting solely from the operation of clause (ii) shall be deemed to have existed or be in continuance with respect to a successor Holder of Class of the Class E-RR Certificates that has not irrevocably waived its right to exercise any of the rights of the Controlling Class Certificateholder; provided that a Consultation Termination Event shall not be deemed to be continuing in the event the Certificate Balances of all Classes of Principal Balance Certificates (other than the Control Eligible Certificates) have been reduced to zero. With respect to Conflicted Loans with respect to the Controlling Class Representative, a Consultation Termination Event shall be deemed to exist.

 

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

 

Control Termination Event”: The occurrence of (a) with respect to any Mortgage Loan (other than the Arizona Retail Portfolio Mortgage Loan) or Serviced Whole Loan (other than the Arizona Retail Portfolio Whole Loan) (i) the Certificate Balance of the Class E-RR Certificates (taking into account the application of any Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balance of such Class in accordance with Section 4.08(a) hereof) being reduced to less than 25% of the initial Certificate Balance of such Class or (ii) a Holder of a Class of the Class E-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

 

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successor Controlling Class Certificateholder pursuant to Section 3.29(g); and (b) with respect to the Arizona Retail Portfolio Whole Loan, when an Arizona Retail Portfolio Control Appraisal Period has occurred and is continuing, (i) the Certificate Balance of the Class E-RR Certificates (taking into account the application of any Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balance of such Class in accordance with Section 4.08(a) hereof) being reduced to less than 25% of the initial Certificate Balance of such Class or (ii) a Holder of a Class of the Class E-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 3.29(g); provided that prior to the related Servicing Shift Securitization Date, except as provided in the last sentence of this definition, no Control Termination Event may occur with respect to the Loan-Specific Directing Holder related to any Servicing Shift Whole Loan and the term “Control Termination Event” shall not be applicable to the Loan-Specific Directing Holder related to such Servicing Shift Whole Loan; provided, further, that a Control Termination Event shall not be deemed to be continuing in the event the Certificate Balances of all Classes of Principal Balance Certificates (other than the Control Eligible Certificates) have been reduced to zero. With respect to Conflicted Loans related to the Controlling Class Representative, a Control Termination Event shall be deemed to exist.

 

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 4.08(a) of this Agreement) 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 H-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-2, Class A-3, Class A-SB, Class A-4, Class A-5, Class A-M, Class B, Class C and Class D 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 Certificateholder”: Each Holder (or Certificate Owner, if applicable) of a Certificate of the Controlling Class as determined by the Certificate Registrar to the Certificate Administrator from time to time.

 

Controlling Class Representative”: The Controlling 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, that

 

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(i) absent such selection, (ii) until a Controlling Class Representative is so selected, or (iii) upon receipt of a written notice from a majority of the Controlling Class Certificateholders, by Certificate Balance, that a Controlling Class Representative is no longer designated, then, in each case, the Controlling Class Certificateholder that represents that it owns the largest aggregate Certificate Balance of the Controlling Class shall, subject to the terms of Section 3.29(b) of this Agreement, be the Controlling Class Representative; provided, however, that, in the case of this clause (iii), in the event that no one Certificateholder represents that it owns the largest aggregate Certificate Balance of the Controlling Class, then there will be no Controlling Class Representative until appointed in accordance with the terms of this Agreement.

 

The initial Controlling Class Representative on the Closing Date shall be Argentic Securities Income USA LLC. The replacement of a Controlling Class Representative shall be governed by the provisions of Section 3.29 of this Agreement. At any time that no Controlling Class Representative has been identified to the Certificate Registrar and the other parties hereto, then there will be deemed to be no Controlling Class Representative for purposes of this Agreement until such time as the Certificate Registrar and the other parties to this Agreement receive notice of a successor Controlling Class Representative.

 

Controlling Companion Loan”: With respect to any Servicing Shift Whole Loan, the related Pari Passu Companion Loan which, upon the securitization of such Pari Passu Companion Loan, servicing is expected to shift to the pooling and servicing agreement entered into in connection with such securitization. For the avoidance of doubt, there are no Controlling Companion Loans as of the Closing Date.

 

Corporate Trust Office”: The offices of the Trustee and Certificate Administrator are located, (i) with respect to the Trustee, at 1100 North Market Street, Wilmington, Delaware 19890, Attention: CMBS Trustee – CD 2017-CD6, (ii) with respect to the Certificate Administrator, at 9062 Old Annapolis Road, Columbia, Maryland 21045, Attention: Corporate Trust Services – CD 2017-CD6, and (iii) in the case of any surrender, transfer or exchange, at Wells Fargo Center, 600 South 4th Street, 7th Floor, MAC N9300-070, Minneapolis, Minnesota 55479, Attention: CTS – Certificate Transfers Services CD 2017-CD6, or the principal trust office of any successor certificate administrator qualified and appointed pursuant to this Agreement.

 

Corporate Woods Portfolio Companion Loans”: As defined in the Preliminary Statement.

 

Corporate Woods Portfolio Mortgage Loan”: As defined in the Preliminary Statement.

 

Corporate Woods Portfolio Service Providers”: With respect to the Corporate Woods Portfolio Companion Loans, the related Other Trustee, Other Servicer, Other Special Servicer and any related sub-servicer, as applicable, and any other Person that makes principal and/or interest advances in respect of such mortgage loan pursuant to any related Other Pooling and Servicing Agreement.

 

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Corporate Woods Portfolio Whole Loan”: The Corporate Woods Portfolio Companion Loans, together with the Corporate Woods Portfolio Mortgage Loan. References herein to the Corporate Woods Portfolio Whole Loan shall be construed to refer to the aggregate indebtedness under the Corporate Woods Portfolio Mortgage Loan and the Corporate Woods Portfolio Companion Loans.

 

Corrected Mortgage Loan”: As defined under the definition of Specially Serviced Loan.

 

Corresponding Certificates”: As defined in the Preliminary Statement with respect to any Corresponding Lower-Tier Regular Interest or Corresponding Class X Component.

 

Corresponding Class X Components”: As defined in the Preliminary Statement with respect to any Corresponding Certificates or any Corresponding Lower-Tier Regular Interest.

 

Corresponding Lower-Tier Regular Interests”: As defined in the Preliminary Statement with respect to any Corresponding Certificates or Corresponding Class X Component.

 

Covance Business Center Companion Loans”: As defined in the Preliminary Statement.

 

Covance Business Center Mortgage Loan”: As defined in the Preliminary Statement.

 

Covance Business Center Service Providers”: With respect to the Covance Business Center Companion Loans, the related Other Trustee, Other Servicer, Other Special Servicer and any related sub-servicer, as applicable, and any other Person that makes principal and/or interest advances in respect of such mortgage loan pursuant to any related Other Pooling and Servicing Agreement.

 

Covance Business Center Whole Loan”: The Covance Business Center Companion Loans, together with the Covance Business Center Mortgage Loan. References herein to the Covance Business Center Whole Loan shall be construed to refer to the aggregate indebtedness under the Covance Business Center Mortgage Loan and the Covance Business Center Companion Loans.

 

Credit Risk Retention Agreement”: The agreement dated as of the Pricing Date, between the Retaining Sponsor, Argentic Securities Holdings Cayman Limited, GACC, CREFI and the Depositor.

 

CREFC®”: Commercial Real Estate Finance Council®, formerly known as Commercial Mortgage Securities Association, or any association or organization that is a successor thereto. If neither such association nor any successor remains in existence, “CREFC®” shall be deemed to refer to such other association or organization as may exist whose principal

 

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membership consists of servicers, trustees, certificateholders, issuers, placement agents and underwriters generally involved in the commercial mortgage loan securitization industry, which is the principal such association or organization in the commercial mortgage loan securitization industry and whose principal purpose is the establishment of industry standards for reporting transaction-specific information relating to commercial mortgage pass-through certificates and commercial mortgage-backed bonds and the commercial mortgage loans and foreclosed properties underlying or backing them to investors holding or owning such certificates or bonds, and any successor to such other association or organization. If an organization or association described in one of the preceding sentences of this definition does not exist, “CREFC®” shall be deemed to refer to such other association or organization as shall be selected by the Master Servicer and reasonably acceptable to the Certificate Administrator, the Trustee, the Special Servicer and, if no Control Termination Event has occurred and is continuing, the Directing Holder.

 

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

 

CREFC® Advance Recovery Report”: A 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® 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 Serviced Whole 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. In connection with preparing the CREFC® Comparative Financial Status Report, the Master Servicer shall process (a) interim financial statements beginning with interim financial statements for the fiscal quarter ending March 31, 2018, and (b) annual financial statements beginning with annual financial statements for the 2018 fiscal year.

 

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CREFC® Delinquent Loan Status Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Delinquent Loan Status Report” available as of the Closing Date on the CREFC® Website, or no later than 90 days after its adoption, 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® 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 Serviced Whole 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. The initial data for this report shall be provided by each Mortgage Loan Seller.

 

CREFC® Historical Bond/Collateral Realized Loss Reconciliation Template”: A report substantially in the form of, and containing the information called for in, the downloadable 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 and Corrected Mortgage Loan Report”: The monthly report in the “Historical Loan Modification and Corrected Mortgage Loan Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans or Serviced Whole 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 (other than the portion of an REO loan related to any Serviced Companion Loan) and for any related Interest Accrual Period, the amount of interest accrued during such Interest Accrual Period at the CREFC® Intellectual Property Royalty License Fee Rate on the same principal balance, in the same manner, and for the same number of days as any related interest payment with regards to the Mortgage Loan during which such Interest Accrual Period is computed. Any payments of the CREFC® Intellectual Property Royalty License Fee shall be made to “CRE Finance Council” and delivered by wire transfer pursuant to the following instructions (or such other instructions as may hereafter be furnished by CREFC® to the Master Servicer in writing at least two Business Days prior to the Master Servicer Remittance Date):

 

Account Name: Commercial Real Estate Finance Council (CREFC®

Bank Name: JPM Morgan Chase Bank, National Association 

Bank Address: 80 Broadway, New York, NY 10005 

Routing Number: 021000021

 

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Account Number: 213597397

 

CREFC® Intellectual Property Royalty License Fee Rate”: A rate equal to 0.0005% 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 (CREFC® IRP)”:

 

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

 

(b)               The following eleven supplemental reports: (i) CREFC® Delinquent Loan Status Report, (ii) CREFC® Historical Loan Modification and Corrected Mortgage Loan Report, (iii) CREFC® REO Status Report, (iv) CREFC® Operating Statement Analysis Report, (v) CREFC® Comparative Financial Status Report, (vi) CREFC® Servicer Watch List, (vii) CREFC® Loan Level Reserve/LOC Report, (viii) CREFC® NOI Adjustment Worksheet, (ix) CREFC® Advance Recovery Report, (x) CREFC® Total Loan Report and (xi) CREFC® Reconciliation of Funds Report;

 

(c)               the following eight templates: (i) CREFC® Appraisal Reduction Template, (ii) CREFC® Servicer Realized Loss Template, (iii) CREFC® Reconciliation of Funds Template, (iv) CREFC® Historical Bond/Collateral Realized Loss Reconciliation Template, (v) CREFC® Historical Liquidation Loss Template, (vi) CREFC® Interest Shortfall Reconciliation Template, (vii) CREFC® Servicer Remittance to Trustee Template and (viii) CREFC® Significant Insurance Event Template; and

 

(d)               such other reports and data files as CREFC® may designate as part of the “CREFC® Investor Reporting Package (CREFC® IRP)” from time to time generally.

 

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”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Level Reserve/LOC Report” available and effective from time to time on the CREFC® Website.

 

CREFC® Loan Periodic Update File”: The monthly data file substantially in the form of, and containing the information called for in, the downloadable form of the “CREFC® 

 

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Loan Periodic Update File” available and effective from time to time on the CREFC® Website and, provided that each CREFC® Loan Periodic Update File shall be accompanied by a CREFC® Advance Recovery Report, if such report is required for a particular month, and all references herein to “CREFC® Loan Periodic Update File” shall be construed accordingly.

 

CREFC® Loan Setup File”: The data file substantially in the form of, and containing the information called for in, the downloadable form of the “CREFC® Loan Setup File” available and effective from time to time on the CREFC® Website.

 

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

 

CREFC® Operating Statement Analysis Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Operating Statement Analysis Report” available and effective from time to time on the CREFC® Website.

 

CREFC® Property File”: The monthly data file substantially in the form of, and containing the information called for, in the downloadable form of the “CREFC® Property File” available and effective from time to time on the CREFC® Website.

 

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 Status Report”: A monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “REO Status Report” available and effective from time to time on the CREFC® Website.

 

CREFC® Schedule AL File”: The data file in the “Schedule AL File” format substantially in the form of and containing the information required by Items 1111(h)(1), 1111(h)(2) and 1111(h)(3) of Regulation AB, Item 1125 of Regulation AB and Item 601(b)(102) of Regulation S-K and otherwise called for therein, or such other form containing such required information for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

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 report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Watch List” available and effective from time to time on the CREFC® Website.

 

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CREFC® Special Servicer Loan File”: The monthly data file substantially in the form of, and containing the information called for in, the downloadable form of the “Special Servicer Loan File” available and effective from time to time on the CREFC® Website.

 

CREFC® Supplemental Servicer Reports”: The CREFC® Delinquent Loan Status Report, the CREFC® Historical Loan Modification and Corrected Mortgage Loan Report, the CREFC® REO Status Report, the CREFC® Servicer Watch List, the CREFC® NOI Adjustment Worksheet, the CREFC® Comparative Financial Status Report, the CREFC® Operating Statement Analysis Report, the CREFC® Loan Level Reserve/LOC Report, the CREFC® Advance Recovery Report and the CREFC® Total Loan Report.

 

CREFC® Total Loan Report”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Total Loan Report” available and effective from time to time on the CREFC® Website.

 

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

 

CREFI”: Citi Real Estate Funding Inc., in its capacity as a Mortgage Loan Seller, and its successors in interest.

 

CREFI Indemnification Agreement”: The agreement dated and effective the Pricing Date, between CREFI, the Depositor, the Underwriters and the Initial Purchasers.

 

CREFI Mortgage Loans”: Each Mortgage Loan transferred and assigned to the Depositor pursuant to the CREFI Purchase Agreement.

 

CREFI Purchase Agreement”: The Mortgage Loan Purchase Agreement dated and effective the Pricing Date, between CREFI and the Depositor.

 

Cross-Over Date”: The Distribution Date, if any, on which the Certificate Balance of each Class of Principal Balance Certificates (other than the Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4 and Class A-5) is (or will be) reduced to zero.

 

CSAIL 2016-C7 Pooling and Servicing Agreement”: The pooling and servicing agreement, dated as of November 1, 2016, between Credit Suisse Commercial Mortgage Securities Corp., as depositor, Wells Fargo Bank, National Association, as master servicer, Rialto Capital Advisors, LLC, as special servicer, Wilmington Trust, National Association, as trustee, Wells Fargo Bank, National Association, as certificate administrator, and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer, and entered into in connection with the creation of the CSAIL 2016-C7 transaction.

 

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 Certificate Administrator

 

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shall be entitled to conclusively rely on the Master Servicer’s calculation or determination of any Cumulative Appraisal Reduction Amount.

 

Custodial Agreement”: The Custodial Agreement, if any, from time to time in effect between the Custodian named therein and the Certificate Administrator, in the form agreed to by the Certificate Administrator and the Custodian, as the same may be amended or modified from time to time in accordance with the terms thereof. No Custodial Agreement will be required if the Custodian is the same party as the Certificate Administrator.

 

Custodian”: Any Custodian appointed pursuant to Section 3.19 of this Agreement. If a Custodian is not so appointed, then the Custodian shall be the Certificate Administrator. The Custodian may (but need not) be the Certificate Administrator, the Trustee or the Master Servicer or any Affiliate of the Certificate Administrator, the Trustee or the Master Servicer. Wells Fargo Bank, National Association will perform its obligations as Custodian hereunder through its Document Custody division.

 

Cut-off Date”: With respect to each Mortgage Loan, the later of the related Due Date of such Mortgage Loan in November 2017 (or, in the case of any Mortgage Loan that has its first Due Date subsequent to November 2017, the date that would have been its Due Date in November 2017 under the terms of that Mortgage Loan if a Periodic Payment were scheduled to be due in that month) and the date of origination of such Mortgage Loan.

 

DBRS”: DBRS, Inc., or its successor in interest. If neither such rating agency 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 other parties hereto, and specific ratings of DBRS herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

DBUBS 2017-BRBK Trust and Servicing Agreement”: The trust and servicing agreement, dated as of October 1, 2017 between Deutsche Mortgage & Asset Receiving Corporation, as depositor, Wells Fargo Bank, National Association, as master servicer, AEGON USA Realty Advisors, LLC, as special servicer, Wells Fargo Bank, National Association, as certificate administrator and as custodian, Wilmington Trust, National Association, as trustee, and Park Bridge Lender Services LLC, as operating advisor, and entered into in connection with the DBUBS 2017-BRBK transaction.

 

Debt Service Coverage Ratio”: With respect to any Mortgage Loan or Serviced Whole Loan as of any date of determination and for any period, the ratio calculated by dividing the net operating income or net cash flow, as applicable, of the related Mortgaged Property or Mortgaged Properties, as the case may be, for the most recently ended 12-month trailing or one-year period for which data is available from the related Borrower (or year-to-date until such time that data for the trailing 12-month period is available), before payment of any scheduled payments of principal and interest on such Mortgage Loan or Serviced Whole Loan but after funding of required reserves and “normalized” information from the CREFC® NOI Adjustment

 

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Worksheet for such Mortgaged Property by the Master Servicer or Special Servicer, if applicable, pursuant to Section 3.13 of this Agreement, by the annual debt service required by such Mortgage Loan or Serviced Whole Loan. Annual debt service shall be calculated by multiplying the Periodic Payment in effect on such date of determination for such Mortgage Loan or Serviced Whole Loan by 12 (or such fewer number of months for which related information is available).

 

Default”: An event of default under the Loan Documents for any Mortgage Loan or Whole Loan, or an event which, with the passage of time or the giving of notice, or both, would constitute an event of default under the Loan Documents for such Mortgage Loan or Whole Loan.

 

Default Interest”: With respect to any Mortgage Loan or Serviced Companion Loan, interest accrued on such Mortgage Loan or Serviced Companion Loan (other than Excess Interest) at the excess of (i) the related Default Rate over (ii) the related Mortgage Rate.

 

Default Rate”: With respect to each Mortgage Loan or Serviced Companion Loan, the per annum rate at which interest accrues on such Mortgage Loan or Serviced Companion Loan following any event of default on such Mortgage Loan or Serviced Companion Loan, including a default in the payment of a Periodic Payment or a Balloon Payment.

 

Defaulted Loan”: A Mortgage Loan or Serviced Companion Loan (i) that is delinquent at least 60 days in respect of its Periodic Payments or that is more than 120 days delinquent in respect of its Balloon Payment (taking into account any extensions to such 120-day period as provided in the provisos to clause (a) of the definition of “Specially Serviced Loan”), if any, in either case such Delinquency to be determined without giving effect to any grace period permitted by the related Loan Documents and without regard to any acceleration of payments under the related Mortgage Loan or Serviced Companion Loan or (ii) as to which the Master Servicer or Special Servicer has, by written notice to the related borrower, accelerated the maturity of the indebtedness evidenced by the related Mortgage Note.

 

Defeasance Account”: As defined in Section 3.26(j) of this Agreement.

 

Defect”: As defined in Section 2.03(e) of this Agreement.

 

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 a Mortgage Loan Seller 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 X of this Agreement 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.

 

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Delinquency”: Any failure of a Borrower to make a scheduled Periodic Payment or Balloon Payment on a Due Date.

 

Delinquent Mortgage Loan”: A Mortgage Loan that is delinquent at least sixty 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.

 

Denomination”: As defined in Section 5.01(a) of this Agreement.

 

Depositor”: Deutsche Mortgage & Asset Receiving Corporation, a Delaware corporation, and its successors and assigns.

 

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

 

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

 

Determination Date”: With respect to any Distribution Date, the 9th day of the calendar month of the related Distribution Date or, if such 9th day is not a Business Day, then the next Business Day, commencing in December 2017.

 

Diligence File”: With respect to each Mortgage Loan or Companion Loan, 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 (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 an original or copy of any intervening assignments of the Mortgage, in each case with evidence of recording indicated thereon or certified to have been submitted for recording;

 

(iii)         assignment of the Mortgage in favor of the Trustee (or the related Other Trustee, in the case of a Non-Serviced Mortgage Loan) or in blank 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 to be sent for recordation);

 

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(iv)        any related Assignment of Leases, Rents and Profits 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 assignment of any related Assignment of Leases, Rents and Profits (if such item is a document separate from the Mortgage) in favor of the Trustee (or the related Other Trustee, in the case of a Non-Serviced Mortgage Loan) or in blank 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 to be sent for recordation);

 

(vi)        the assignment of all unrecorded documents relating to the Mortgage Loan or a Serviced Whole Loan, if not already assigned pursuant to items (iii) or (v) above;

 

(vii)       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;

 

(viii)      the policy or certificate of lender’s title insurance issued on the date of 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;

 

(ix)        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 the Trustee (or the related Other Trustee, in the case of a Non-Serviced Mortgage Loan) or in blank 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 of such assignment to be sent for filing);

 

(xi)        any Intercreditor Agreement relating to permitted debt of the mortgagor, including any Intercreditor Agreement relating to a Serviced Whole Loan;

 

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

 

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

 

(xiv)       any property management agreement relating to a Mortgage Loan or a Serviced Whole Loan;

 

(xv)        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 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 issuing entity is a beneficiary of such comfort letter or other agreement, or for the issuance of a new comfort letter in favor of the issuing entity, as the case may be;

 

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

 

(xvii)      any related mezzanine intercreditor agreement;

 

(xviii)     all related environmental reports;

 

(xix)       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)          copies 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)           copies of all mortgagor’s certificates of hazard insurance and/or hazard insurance policies or other applicable insurance policies (to the extent not previously included as part of this definition), if any, delivered in connection with the origination of the related Mortgage Loan;

 

(g)          a copy of the appraisal for the related Mortgaged Property(ies);

 

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(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)           copies of all surveys for the related Mortgaged Property or Mortgaged Properties;

 

(k)          copies of any zoning reports;

 

(l)           copies of financial statements of the related mortgagor;

 

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

 

(n)          copies of all UCC searches;

 

(o)          copies of all litigation searches;

 

(p)          copies of all bankruptcy searches;

 

(q)          a copy of the origination settlement statement;

 

(r)           a copy of the insurance consultant report;

 

(s)          copies of the organizational documents of the related mortgagor and any guarantor;

 

(t)           copies of the escrow statements;

 

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

 

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

 

(w)         a copy of the payment history with respect to such Mortgage Loan prior to the Closing Date;

 

provided, that (i) with respect to any Mortgage Loan which is a Non-Serviced Mortgage Loan on the Closing Date, any assignments in favor of the trustee will be in favor of the trustee under the related Other Pooling and Servicing Agreement and (ii) with respect to any Servicing Shift Mortgage Loan, any assignments in favor of the trustee may be in blank and may not be recorded or filed until otherwise set forth in Section 2.01(a);

 

in each case, to the extent that the Originator received such documents in connection with the origination of such Mortgage Loan. In the event any of the items identified above were not included in connection with the origination of such Mortgage Loan, the

 

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Diligence File shall include a statement to that effect; provided that the Mortgage Loan Seller shall not deliver information that is proprietary to the related Originator or Mortgage Loan Seller or any draft documents or privileged or internal communications. 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 Certification”: As defined in Section 2.01(f).

 

Directing Holder”: With respect to (i) any Serviced Mortgage Loan and any related Serviced Companion Loan (other than the Arizona Retail Portfolio Mortgage Loan and any Servicing Shift Mortgage Loan or Conflicted Loan), the Controlling Class Representative, (ii) the Arizona Retail Portfolio Whole Loan, (A) for so long as no Arizona Retail Portfolio Control Appraisal Period has occurred and is continuing, the Arizona Retail Portfolio Directing Holder, and (B) for so long as a Arizona Retail Portfolio Control Appraisal Period has occurred and is continuing, the Controlling Class Representative, (iii) each Servicing Shift Whole Loan, the related Loan-Specific Directing Holder and (iv) each Conflicted Loan, there will be no Directing Holder.

 

At such time as there is no Controlling Class in accordance with the definition thereof, the Controlling Class Representative shall have no rights under this Agreement.

 

The identification and contact information of each initial Directing Holder as of the Closing Date is set forth on Schedule I to this Agreement. The parties to this Agreement may rely on such Schedule in accordance with Section 3.29.

 

For the avoidance of doubt, notwithstanding anything to the contrary contained in this Agreement, Control Termination Event and Consultation Termination Event shall not 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.

 

In the event that no Directing Holder has been appointed or identified to the Master Servicer or the Special Servicer, as applicable, and the Master Servicer or the Special Servicer, as applicable, has attempted to obtain such information from the Certificate Administrator and no such entity has been identified to the Master Servicer or the Special Servicer, as applicable, then until such time as the new Directing Holder is identified, the Master Servicer or the Special Servicer, as applicable, shall have no duty to consult with, provide notice to, or seek the approval or consent of any such Directing Holder as the case may be.

 

Directly Operate”: With respect to any Serviced REO 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 Serviced REO

 

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Property, the holding of such Serviced REO Property primarily for sale to customers in the ordinary course of a trade or business, or any use of such Serviced REO Property in a trade or business conducted by the Trust Fund, or the performance of any construction work on the Serviced REO Property other than through an Independent Contractor; provided that the Special Servicer, on behalf of the Trust Fund, shall not be considered to Directly Operate a Serviced REO Property solely because the Special Servicer, on behalf of the Trust Fund, 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 Serviced REO Property or takes other actions consistent with Treasury Regulations Section l.856-4(b)(5)(ii).

 

Disclosable Special Servicer Fees”: With respect to any Serviced Mortgage Loan and any related Serviced Companion Loan or Serviced REO Property, any compensation and other remuneration (including, without limitation, in the form of commissions, brokerage fees, rebates, and 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 Borrower, any Manager, any guarantor or indemnitor in respect of a Serviced Mortgage Loan and any related Serviced Companion Loan and any purchaser of any Serviced Mortgage Loan and any related Serviced Companion Loan or Serviced REO Property) in connection with the disposition, workout or foreclosure of any Serviced Mortgage Loan and any related Serviced Companion Loan, the management or disposition of any Serviced REO Property, and the performance by the Special Servicer or any such Affiliate of any other special servicing duties under this Agreement; provided that any compensation and other remuneration that the Master Servicer or Certificate Administrator is permitted to receive or retain pursuant to the terms of this Agreement in connection with its respective duties in such capacity as Master Servicer or Certificate Administrator under this Agreement shall not be Disclosable Special Servicer Fees.

 

Disclosure Parties”: As defined in Section 3.14(e) of this Agreement.

 

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

 

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

 

Disqualified Non-U.S. Person”: With respect to a Class R Certificate, any Non-U.S. Person or agent thereof other than (a) a Non-U.S. Person that holds the Class R Certificate in connection with the conduct of a trade or business within the United States and has furnished the transferor and the Certificate Registrar with an effective IRS Form W-8ECI (or applicable successor Form promulgated by the IRS for the purpose of providing and certifying the information provided on Form W-8ECI as of the Closing Date) or (b) a Non-U.S. Person that has delivered to both the transferor and the Certificate Registrar an opinion of a nationally recognized tax counsel to the effect that the transfer of the Class R Certificate to it is in accordance with the requirements of the Code and the regulations promulgated thereunder and that such transfer of the Class R Certificate will not be disregarded for federal income tax purposes.

 

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Disqualified Organization”: Any of (a) the United States, a State or any political subdivision thereof or any agency or instrumentality of any of the foregoing (other than an instrumentality that is a corporation if all of its activities are subject to tax and, except for the Federal Home Mortgage Corporation, a majority of its board of directors is not selected by any such governmental unit), (b) a foreign government, International Organization (as defined below) or agency or instrumentality of either of the foregoing, (c) an organization that is exempt from tax imposed by Code Chapter 1 (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), (d) rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of the Code, or (e) any other Person so designated by the Certificate Registrar based upon an Opinion of Counsel provided to the Certificate Registrar (which shall be an expense of the Trust) to the effect that any Transfer to such Person may cause any Trust REMIC to be subject to tax or to fail to qualify as a REMIC at any time that the Certificates are outstanding. For the purposes of this definition, 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 Distribution Account, the Lower-Tier Distribution Account and the Excess Interest Distribution Account, each of which may be sub-accounts of a single Eligible Account.

 

Distribution Date”: For each Determination Date, the 4th Business Day following such Determination Date in each calendar month, commencing in December 2017. The first Distribution Date shall be December 15, 2017.

 

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

 

Do Not Hire List”: The list, as may be updated at any time, provided by the Depositor to the Master Servicer, Special Servicer, the Certificate Administrator, Trustee or Operating Advisor, 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 X of this Agreement or as having failed to comply (after any applicable cure period) with any similar Regulation AB reporting requirements under any other securitization transaction.

 

Due Date”: With respect to (i) any Mortgage Loan or Serviced Whole Loan 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 and (ii) any Mortgage Loan or Serviced Whole Loan after the Maturity Date therefor or any REO Loan, the day of the month set forth in the related Mortgage Note on which each Periodic Payment on such Mortgage Loan or Serviced Whole Loan had been scheduled to be first due.

 

Early Termination Notice Date”: Any date as of which the aggregate Stated Principal Balance of the Mortgage Loans remaining in the Trust is less than 1.0% of the

 

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aggregate Stated Principal Balance of all of the Mortgage Loans as of the Cut-off Date. Solely for purposes of this calculation, if such right is being exercised after December 2027 and the U-Haul SAC Portfolios, 14, 15, 17 or the FedEx Ground – Durham Mortgage Loan is still an asset of the Trust, then such Mortgage Loan(s) shall be excluded from the then aggregate Stated Principal Balance as of the Cut-off Date.

 

EDGAR Compatible Format”: (a) With respect to the CREFC® Schedule AL File, the Schedule AL Additional File and any other information required pursuant to Item 1111(h) of Regulation AB, XML Format or such other format as mutually agreed to between the Depositor, Certificate Administrator and the Master Servicer and (b) with respect to any other document or information, any format compatible with EDGAR, including, without limitation, HTML, Word, Excel or clean and searchable PDFs.

 

Eligible Account”: Any of:

 

(i)          an account or accounts maintained with a depository institution or trust company (A) the short-term unsecured debt obligations or commercial paper of which are rated at least “P-1” by Moody’s, “F1” by Fitch and “R-1 (middle)” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)), in the case of accounts in which funds are held for 30 days or less, or (B) in the case of accounts in which funds are held for more than 30 days, the long-term unsecured debt obligations of which are rated at least “A2” by Moody’s, “A” by Fitch and “A” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)),

 

(ii)         an account or accounts maintained with Wells Fargo Bank, National Association so long as Wells Fargo Bank, National Association’s long-term unsecured debt or deposit accounts are rated at least “A2” by Moody’s, “A” by Fitch and “A” by DBRS (if rated by DBRS or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)) (if the deposits are to be held in the account for more than 30 days) or Wells Fargo Bank, National Association’s short-term deposit accounts or short-term unsecured debt rating is rated at least “P-1” by Moody’s, “F1” by Fitch and “R-1 (middle)” by DBRS (if rated by DBRS or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)) (if the deposits are to be held in the account for 30 days or less),

 

(iii)        a segregated trust account or accounts maintained with the trust department of a federal or state chartered depository institution or trust company acting in its fiduciary capacity which institution or trust company has a combined capital and surplus of at least $50,000,000 and is subject to supervision or examination by federal or state authority and to regulations regarding fiduciary funds on deposit similar to Title 12 of the Code of Federal

 

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Regulations, Section 9.10(b) and the long-term unsecured debt obligations of which are rated at least “A2” by Moody’s,

 

(iv)        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)-(iii) 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, or

 

(v)         any other account as to which the Certificate Administrator, the Trustee, the Master Servicer or the Special Servicer, as applicable, receives a Rating Agency Confirmation from each Rating Agency, which may be an account maintained by or with the Certificate Administrator, the Trustee, the Master Servicer or the Special Servicer.

 

Eligible Accounts may bear interest.

 

Eligible Investor”: Any of (i) a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer to whom notice is given that the offer, sale or transfer is being made in reliance on Rule 144A or (ii) (except with respect to the Class R Certificates) an Institutional Accredited Investor.

 

Eligible Asset Representations Reviewer”: An institution that (a) is the special servicer, operating advisor or asset representations reviewer on a transaction rated by any of Moody’s, S&P, Fitch, DBRS, KBRA or Morningstar and that has not been a special servicer, operating advisor or asset representations reviewer on a transaction for which Moody’s, S&P, Fitch, DBRS, KBRA or 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 the special servicer, operating advisor or asset representations reviewer as the sole or material factor in such rating action, (b) can and will make the representations and warranties set forth in Section 2.04(g), (c) is not (and is not affiliated (including Risk Retention Affiliated) with) any Sponsor, any Mortgage Loan Seller, any Originator, the Master Servicer, the Special Servicer, the Depositor, the Retaining Party, the Certificate Administrator, the Trustee, the Directing Holder, or any of their respective Affiliates (including Risk Retention Affiliates), (d) has not performed (and is not 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 or the Directing Holder 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) 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

 

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relates, other than in fees from its role as Asset Representations Reviewer (or as Operating Advisor, if applicable) and except as otherwise set forth in Section 11.02.

 

Eligible Operating Advisor”: An institution (i) that is the special servicer or operating advisor on a commercial mortgage-backed securities transaction rated by Moody’s, S&P, Fitch, DBRS, KBRA or Morningstar (including, in the case of Park Bridge Lender Services LLC, this transaction) but has not been special servicer or operating advisor on a transaction for which Moody’s, S&P, Fitch, DBRS, KBRA or Morningstar has qualified, downgraded or withdrawn its rating or ratings of, one or more classes of certificates for such transaction citing servicing concerns with the special servicer or operating advisor as the sole or material factor in such rating action, (ii) that can and will make the representations and warranties set forth in Section 2.04(f) of this Agreement, (iii) that is not (and is not affiliated (including Risk Retention Affiliated) with) the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, a Mortgage Loan Seller, the Retaining Party, the Controlling Class Representative, the Directing Holder, an Other Depositor, Other Trustee, Other Servicer or Other Special Servicer, or an Affiliate of the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, a Mortgage Loan Seller, the Controlling Class Representative, the Directing Holder or an Other Depositor, Other Trustee, Other Servicer or Other Special Servicer or any of their respective Affiliates (including Risk Retention Affiliates), (iv) that has not been paid by any 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 Special Servicer; (v) that (x) has been regularly engaged in the business of analyzing and advising clients in commercial mortgage-backed securities matters and has at least five years of experience in collateral analysis and loss projections, and (y) has at least five years of experience in commercial real estate asset management and experience in the workout and management of distressed commercial real estate assets, and (vi) 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 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 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 the terms of this Agreement to enforce the rights of the issuing entity against the related Mortgage Loan Seller with respect to the Repurchase Request.

 

Enforcing Servicer”: (a) With respect to a Specially Serviced Loan, the Special Servicer, and (b) with respect to a Performing Loan, (i) in the case of a Repurchase Request made by the Special Servicer, the Directing Holder or a Controlling Class Certificateholder, the Master Servicer, and (ii) in the case of a Repurchase Request made by any person other than the Special Servicer, the Directing Holder or a Controlling Class Certificateholder, (A) prior to a Resolution Failure relating to such Performing Loan, the Master Servicer (provided that the consent of the Special Servicer will be required with respect to any Qualified Substitute

 

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Mortgage Loan), and (B) from and after a Resolution Failure relating to such Performing Loan, the Special Servicer.

 

Environmental Insurance Policy”: With respect to any Mortgaged Property or Serviced REO Property, any insurance policy covering pollution conditions and/or other environmental conditions that is maintained from time to time in respect of such Mortgaged Property or Serviced REO Property, as the case may be, for the benefit of, among others, the Trustee on behalf of the Certificateholders.

 

Environmental Report”: The environmental audit report or reports with respect to each Mortgaged Property delivered to the Mortgage Loan Sellers in connection with the related Mortgage Loan.

 

ERISA”: The Employee Retirement Income Security Act of 1974, as it may be amended from time to time.

 

Escrow Account”: As defined in Section 3.04(b) of this Agreement. Any Escrow Account may be a sub-account of the related Cash Collateral Account.

 

Escrow Payment”: Any payment made by any Borrower to the Master Servicer pursuant to the related Mortgage, Cash Collateral Account Agreement, Lock-Box Agreement, Loan Agreement or other Loan Document for the account of such Borrower for application toward the payment of taxes, insurance premiums, assessments, environmental remediation and similar items in respect of the related Mortgaged Property or related to the satisfaction of closing conditions for the related Mortgage Loan.

 

Euroclear”: Euroclear Bank, as operator of the Euroclear System and its successors in interest.

 

Excess Interest”: With respect to each of the Mortgage Loans indicated on the Mortgage Loan Schedule as having a Revised Rate, interest accrued (or paid currently, if required under the applicable Loan Documents) on the related outstanding principal balance at the Revised Rate in respect of such Mortgage Loan in excess of the interest accrued at the Initial Rate, plus any related interest accrued on such amounts, to the extent permitted by applicable law and the related Mortgage Loan documents.

 

Excess Interest Certificates”: Any class of commercial mortgage pass-through certificates issued under this Agreement that are designated as evidencing an interest in the Excess Interest. The Class S Certificates shall be the only Classes of Excess Interest Certificates issued under this Agreement.

 

Excess Interest Distribution Account”: The segregated non-interest bearing trust account or sub-account created and maintained by the Certificate Administrator pursuant to Section 3.05(k), which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of the holders of CD 2017-CD6 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2017-CD6 – Excess Interest Distribution Account,”

 

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and which must be an Eligible Account or a sub-account of an Eligible Account. 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 Prepayment Interest Shortfall”: With respect to any Distribution Date, the aggregate amount, if any, by which the Prepayment Interest Shortfalls with respect to all Principal Prepayments received with respect to the Mortgage Loans and Companion Loans during the related prepayment period exceed the Compensating Interest Payment.

 

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

 

Excess Servicing Fees”: With respect to each Mortgage Loan and any related Serviced Companion Loan (and any successor REO Loan with respect thereto), that portion of the Servicing Fee that accrues at a per annum rate equal to the Excess Servicing Fee Rate.

 

Excess Servicing Fee Rate”: With respect to each Mortgage Loan and any related Serviced Companion Loan (and any successor REO Loan with respect thereto), a rate per annum equal to the Servicing Fee Rate minus the sum of (a) the rate payable to any related Mortgage Loan Seller Sub-Servicer identified on Exhibit X to this Agreement and (b) solely with respect to each Mortgage Loan, 0.0025%; provided that such rate shall be subject to reduction pursuant to Section 7.02 of this Agreement.

 

Excess Servicing Fee Right”: With respect to each Mortgage Loan and any related Serviced Companion Loan (and any successor REO Loan with respect thereto), the right to receive Excess Servicing Fees. In the absence of any transfer of the Excess Servicing Fee Right, the Master Servicer shall be the owner of such Excess Servicing Fee Right.

 

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

 

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

 

FHLMC”: The Federal Home Loan Mortgage Corporation, or any successor thereto.

 

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 Directing Holder that does not include any communication (other than the related Asset Status Report) between the Special Servicer and the 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 Asset Status Report Review Process or following completion of the ASR Consultation Process, as applicable. For the avoidance of doubt, the Special Servicer may issue more than one

 

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Final Asset Status Report with respect to any Specially Serviced Loan in in accordance with the procedures described in Section 3.23(e). Each Final Asset Status Report will be labeled or otherwise identified or communicated as being final.

 

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

 

Final Recovery Determination”: With respect to any Specially Serviced Loan, Serviced REO Loan or any Mortgage Loan subject to repurchase by the related Mortgage Loan Seller pursuant to Section 2.03(e) of this Agreement, or in the case of a Whole Loan, subject to a purchase pursuant to the applicable Intercreditor Agreement, or any Mortgage Loan or Whole Loan subject to purchase pursuant to any related mezzanine intercreditor agreement, the recovery of all Insurance Proceeds, Liquidation Proceeds, the related Purchase Price and other payments or recoveries (including proceeds of the final sale of any Serviced REO Property) which the Master Servicer (or in the case of a Specially Serviced Loan or Serviced REO Loan, the Special Servicer), in its reasonable judgment, and, if no Consultation Termination Event has occurred and is continuing, in consultation with the Directing Holder, as evidenced by a certificate of a Servicing Officer delivered to the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Custodian (and the Master Servicer, if the certificate is from the Special Servicer), expects to be finally recoverable. If no Control Termination Event has occurred and is continuing, the Directing Holder shall have ten (10) Business Days to review and approve each such recovery determination; provided 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. The Master Servicer shall maintain records, prepared by a Servicing Officer, of each Final Recovery Determination until the earlier of (i) its termination as the Master Servicer hereunder and the transfer of such records to a successor servicer and (ii) five years following the termination of the Trust Fund.

 

Financial Market Publisher”: Blackrock Financial Management, Inc., Moody’s Analytics, Bloomberg Financial Markets, L.P., CMBS.com, Inc., Trepp, LLC, Intex Solutions, Inc., Interactive Data Corporation, Markit LLC and Thomson Reuters Corporation or any successor entities thereof.

 

Fitch”: Fitch Ratings, Inc. or its successor in interest. If neither such rating agency 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 other parties hereto, and specific ratings of Fitch herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

FNMA”: The Federal National Mortgage Association or any successor thereto.

 

Form 8-K”: A current report on Form 8-K under the Exchange Act or such successor form as the Commission may specify from time to time.

 

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Form 8-K Disclosure Information”: As defined in Section 10.09 of this Agreement.

 

GACC”: German American Capital Corporation, in its capacity as a Mortgage Loan Seller, and its successors in interest.

 

GACC Indemnification Agreement”: The agreement dated and effective the Pricing Date, between GACC, the Depositor, the Underwriters and the Initial Purchasers.

 

GACC Mortgage Loans”: Each Mortgage Loan transferred and assigned to the Depositor pursuant to the GACC Purchase Agreement.

 

GACC Purchase Agreement”: The Mortgage Loan Purchase Agreement dated and effective the Pricing Date, between GACC and the Depositor.

 

Gain-on-Sale Proceeds”: With respect to any Mortgage Loan (and with respect to any Non-Serviced Mortgage Loan only the pro rata share of such proceeds allocated to the Trust pursuant to the terms of the related Intercreditor Agreement) or Serviced Companion Loan, the excess of (i) Net Liquidation Proceeds of such Mortgage Loan, Serviced Companion Loan or related Serviced REO Property, over (ii) the amount that would have been received if a principal payment and all other amounts due in full had been made with respect to such Mortgage Loan or Serviced Companion Loan on the Due Date immediately following the date on which such proceeds were received.

 

Gain-on-Sale Reserve Account”: The segregated non-interest bearing trust account or sub-account created and maintained by the Certificate Administrator pursuant to Section 3.05(i) of this Agreement for the Certificateholders and, in the case of a Serviced Companion Loan, the Serviced Companion Loan Noteholders, which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CD 2017-CD6 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2017-CD6 and, if applicable, Serviced Companion Loan Noteholders, Gain-on-Sale Reserve Account.” The Gain-on-Sale Reserve Account must be an Eligible Account or a sub-account of an Eligible Account and will be an asset of the Lower-Tier REMIC.

 

General Special Servicer”: As defined in Section 3.22(h) of this Agreement.

 

Global Certificates”: Each of the Public Global Certificates, Regulation S Global Certificates or Rule 144A Global Certificates if and so long as such class of Certificates is registered in the name of a nominee of the Depository.

 

Grace Period”: The number of days before a payment default is an event of default under the related Mortgage Loan.

 

Grantor Trust”: A segregated asset pool within the Trust Fund, which at all times shall be classified as a trust, the beneficial owners of which are treated as the owners of the

 

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assets in the pool under the Grantor Trust Provisions, and beneficial ownership of which is represented by the Grantor Trust Certificates. The Grantor Trust consists of the Class S Specific Grantor Trust Assets and the Excess Interest Distribution Account.

 

Grantor Trust Certificates”: The Class S Certificates.

 

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

 

Gurnee Mills Companion Loans”: As defined in the Preliminary Statement.

 

Gurnee Mills Loan REMIC”: A segregated asset pool designated as a REMIC pursuant to the Gurnee Mills REMIC Declaration consisting of the Gurnee Mills Mortgage Loan, the proceeds thereof and any property securing such Mortgage Loan that is acquired by foreclosure or deed-in-lieu of foreclosure (to the extent of the Gurnee Mills Loan REMIC’s interest in such property securing the Gurnee Mills Mortgage Loan).

 

Gurnee Mills Loan REMIC Regular Interest”: As defined in the Preliminary Statement.

 

Gurnee Mills Mortgage Loan”: As defined in the Preliminary Statement.

 

Gurnee Mills REMIC Declaration”: As defined in the Preliminary Statement.

 

Gurnee Mills Residual Interest”: As defined in the Preliminary Statement.

 

Gurnee Mills Service Providers”: With respect to the Gurnee Mills Companion Loans, the related Other Trustee, Other Servicer, Other Special Servicer and any related sub-servicer, as applicable, and any other Person that makes principal and/or interest advances in respect of such mortgage loan pursuant to any related Other Pooling and Servicing Agreement.

 

Gurnee Mills Whole Loan”: The Gurnee Mills Companion Loans, together with the Gurnee Mills Mortgage Loan. References herein to the Gurnee Mills Whole Loan shall be construed to refer to the aggregate indebtedness under the Gurnee Mills Mortgage Loan and the Gurnee Mills Companion Loans.

 

Hazardous Materials”: Any dangerous, toxic or hazardous pollutants, chemicals, wastes, or substances, including, without limitation, those so identified pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental laws now existing, and specifically including, without limitation, asbestos and asbestos-containing materials, polychlorinated biphenyls (“PCBs”), radon gas, petroleum and petroleum products, urea formaldehyde and any substances classified as being “in inventory,” “usable work in process” or similar classification which would, if classified as unusable, be included in the foregoing definition.

 

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Holder”: With respect to any Certificate, a Certificateholder; with respect to any Lower-Tier Regular Interest, the Trustee.

 

Impermissible Asset Representations Reviewer Affiliate”: As defined in Section 3.33.

 

Impermissible Operating Advisor Affiliate”: As defined in Section 3.33.

 

Impermissible Risk Retention Affiliate”: As defined in Section 3.33.

 

Impermissible RP Affiliate”: As defined in Section 3.33.

 

Indemnification Agreements”: Each of the GACC Indemnification Agreement, CREFI Indemnification Agreement and Argentic Indemnification Agreement.

 

Indemnified Party”: As defined in Section 8.05(d), Section 8.05(g) or Section 8.05(h), as applicable, of this Agreement, as the context requires.

 

Indemnifying Party”: As defined in Section 8.05(d), Section 8.05(g) or Section 8.05(h), as applicable, of this Agreement, as the context requires.

 

Independent”: When used with respect to any specified Person, any such Person who (i) does not have any direct financial interest, or any material indirect financial interest, in any of the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, any Directing Holder, the Controlling Class Representative, any Borrower or Manager or any Affiliate thereof, and (ii) is not connected with any such Person thereof as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions.

 

Independent Contractor”: Either (i) any Person that would be an “independent contractor” with respect to the applicable Trust REMIC within the meaning of Section 856(d)(3) of the Code if such Trust REMIC were a real estate investment trust (except that the ownership tests 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 or 35% or more of the aggregate value of all Classes of Certificates), provided that such Trust REMIC does not receive or derive any income from such Person and the relationship between such Person and such Trust REMIC is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5) (except 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 (at the expense of the party seeking to be deemed an Independent Contractor) addressed to the Master Servicer or the Special Servicer, as applicable, the Certificate Administrator and the Trustee has been delivered to the Certificate Administrator to that effect) or (ii) any other Person (including the Master Servicer and the Special Servicer) if the Master Servicer or the Special Servicer, as applicable, on behalf of itself, the Certificate Administrator and the Trustee has received an Opinion of Counsel (at the expense of the party seeking to be deemed an Independent Contractor) to the effect that the taking of any action in respect of any Serviced REO Property by such Person, subject to any conditions therein

 

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specified, that is otherwise herein contemplated to be taken by an Independent Contractor will not cause such Serviced REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (determined without regard to the exception applicable for purposes of Section 860D(a) of the Code) or cause any income realized in respect of such Serviced REO Property to fail to qualify as Rents from Real Property (provided that such income would otherwise so qualify).

 

Individual Certificate”: Any Certificate in definitive, fully registered physical form without interest coupons.

 

Initial Purchasers”: Deutsche Bank Securities Inc., Citigroup Global Markets Inc. and J.P. Morgan Securities LLC, and their respective successors in interest.

 

Initial Rate”: The stated Mortgage Rate with respect to an ARD Loan as of the Cut-off Date.

 

Initial Resolution Period”: As defined in Section 2.03(e) of this Agreement.

 

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 may not be more than one Initial Requesting Certificateholder with respect to any Mortgage Loan.

 

Initial Schedule AL Additional File”: The data file containing additional information or schedules regarding data points in the Initial Schedule AL File and filed as Exhibit 103 to the Form ABS-EE or, if applicable, Form ABS-EE/A incorporated by reference in the Prospectus.

 

Initial Schedule AL File”: The data file prepared by, or on behalf of, the Depositor and filed as Exhibit 102 to the Form ABS-EE or, if applicable, Form ABS-EE/A incorporated by reference in the Prospectus.

 

Institutional Accredited Investor”: An institution that is an “accredited investor” within the meaning of Rule 501(a)(l), (2), (3) or (7) under the Act.

 

Insurance Proceeds”: Proceeds of any fire and hazard insurance policy, title policy or other insurance policy relating to a Mortgage Loan or Serviced Whole Loan (including any amounts paid by the Master Servicer pursuant to Section 3.08 of this Agreement).

 

Integrated Health Campus Companion Loan”: As defined in the Preliminary Statement.

 

Integrated Health Campus Mortgage Loan”: As defined in the Preliminary Statement.

 

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Integrated Health Campus Service Providers”: With respect to the Integrated Health Campus Companion Loan, the related Other Trustee, Other Servicer, Other Special Servicer and any related sub-servicer, as applicable, and any other Person that makes principal and/or interest advances in respect of such mortgage loan pursuant to any related Other Pooling and Servicing Agreement.

 

Integrated Health Campus Whole Loan”: The Integrated Health Campus Companion Loan, together with the Integrated Health Campus Mortgage Loan. References herein to the Integrated Health Campus Whole Loan shall be construed to refer to the aggregate indebtedness under the Integrated Health Campus Mortgage Loan and the Integrated Health Campus Companion Loan.

 

Intercreditor Agreement”: With respect to any Whole Loan, the related intercreditor, co-lender or similar agreement in effect from time to time by and between (a) the holder of the related Mortgage Loan(s) and the holder of the related Subordinate Companion Loan(s) relating to the relative rights of such holders or (b) the holders of the related Mortgage Loan and the related Serviced Pari Passu Companion Loan(s) or Non-Serviced Companion Loan(s) relating to the relative rights of such holders. The intercreditor or co-lender agreements related to each of the Whole Loans, shall each be an Intercreditor Agreement.

 

Interest Accrual Amount”: With respect to any Distribution Date and any Class of Regular Certificates, an amount equal to 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 due in respect of such Classes of Regular Certificates shall be made on the basis of a 360-day year consisting of twelve 30-day months.

 

Interest Accrual Period”: With respect to each Class of Regular Certificates, for each Distribution Date, the calendar month immediately preceding the month in which such Distribution Date occurs.

 

Interest Distribution Amount”: With respect to any Distribution Date and with respect to each Class of Regular Certificates, an amount equal to (A) the sum of (i) the Interest Accrual Amount with respect to such Class for such Distribution Date and (ii) the Interest Shortfall, if any, with respect to such Class for such Distribution Date, less (B) any Excess Prepayment Interest Shortfall allocated to such Class on such Distribution Date pursuant to Section 4.01(i).

 

Interest Reserve Account”: The segregated non-interest bearing trust account or sub-account created and maintained by the Certificate Administrator pursuant to Section 3.05(e) of this Agreement, which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CD 2017-CD6 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2017-CD6, Interest Reserve Account” and which must be an

 

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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”: On any Distribution Date for any Class of Regular Certificates, the amount of interest required to be distributed to the Holders of such Class pursuant to Section 4.01(b) of this Agreement on such Distribution Date minus the amount of interest actually distributed to such Holders pursuant to such Section, if any.

 

Interested Person”: As of any date of determination, the Depositor, the Master Servicer, the Special Servicer, the Non-Conflicted Special Servicer, if any, the Certificate Administrator, the Trustee, the Operating Advisor, the Asset Representations Reviewer, the Directing Holder, any Companion Loan Noteholder, any Certificateholder, any Borrower, any Mortgage Loan Seller, any holder of a related mezzanine loan, any Manager, any Independent Contractor engaged by the Special Servicer pursuant to Section 3.15 of this Agreement, or any Person known to a Servicing Officer of the Special Servicer to be an Affiliate of any of them.

 

Inquiries”: As defined in Section 4.02(c) of this Agreement.

 

Intralinks Site”: The internet website, which shall initially be “www.intralinks.com”, used by the Depositor and Mortgage Loan Sellers to accept and upload the Diligence Files.

 

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

 

Investment Account”: As defined in Section 3.07(a) of this Agreement.

 

Investment Representation Letter”: As defined in Section 5.02(c)(i)(A) of this Agreement.

 

Investor Certification”: A certificate (which may be in electronic form) substantially in the form of Exhibit L-1A, Exhibit L-1B, Exhibit L-1C or Exhibit L-1D to this Agreement or in the form of an electronic certification on the Certificate Administrator’s Website (which may be a “click-through”), representing (i) that such Person executing the certificate is a Certificateholder or the Directing Holder (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 Loan Noteholder (or any investment advisor or 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 Holder or a Controlling Class Certificateholder, 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 Conflicted Information as set forth herein, or (2) if such Person is not the Directing Holder or a

 

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Controlling Class Certificateholder, such Person shall only receive access to the Distribution Date Statements prepared by the Certificate Administrator, (iii) that 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 Conflicted Controlling Class Holder (i) shall be permitted to obtain, upon reasonable request in accordance with Section 4.02(b) of this Agreement any Conflicted Information relating to any Conflicted Controlling Class Loan with respect to which such Conflicted Controlling Class Holder is not a Borrower Party (if such Conflicted Information is not otherwise available to such Conflicted Controlling Class Holder via the Certificate Administrator’s Website on account of it constituting Conflicted Information) from the Master Servicer (with respect to non-Specially Serviced Loans) or the Special Servicer (with respect to Specially Serviced Loans), in each case, to the extent in the possession of the Master Servicer or Special Servicer, as applicable and (ii) shall be considered a Privileged Person for all other purposes, except with respect to its ability to obtain information with respect to any related Conflicted Controlling Class Loan.

 

Investor Q&A Forum”: As defined in Section 4.02(c) of this Agreement.

 

Investor Registry”: As defined in Section 4.02(d) of this Agreement.

 

IO Group YM Distribution Amount”: As defined in Section 4.01(d) of this Agreement.

 

IRG Portfolio Companion Loan”: As defined in the Preliminary Statement.

 

IRG Portfolio Mortgage Loan”: As defined in the Preliminary Statement.

 

IRG Portfolio Service Providers”: With respect to the IRG Portfolio Companion Loan, the related Other Trustee, Other Servicer, Other Special Servicer and any related sub-servicer, as applicable, and any other Person that makes principal and/or interest advances in respect of such mortgage loan pursuant to any related Other Pooling and Servicing Agreement.

 

IRG Portfolio Whole Loan”: The IRG Portfolio Companion Loan, together with the IRG Portfolio Mortgage Loan. References herein to the IRG Portfolio Whole Loan shall be construed to refer to the aggregate indebtedness under the IRG Portfolio Mortgage Loan and the IRG Portfolio Companion Loan.

 

IRS”: The Internal Revenue Service.

 

JPMDB 2017-C7 Pooling and Servicing Agreement”: The pooling and servicing agreement, dated as of October 1, 2017, between J.P. Morgan Chase Commercial Mortgage Securities Corp., as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer and as special servicer, Wells Fargo Bank, National Association, as certificate administrator and as trustee, and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, and entered into in connection with the creation of the JPMDB 2017-C7 transaction.

 

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KBRA”: Kroll Bond Rating Agency, Inc., or its successor in interest. If neither such rating agency 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 other parties hereto, 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 or Serviced Whole Loan, all amounts received thereon during any Collection Period (or the related grace period), whether as payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late payments or collections of principal or interest due in respect of such Mortgage Loan or Serviced Whole Loan (without regard to any acceleration of amounts due thereunder by reason of default) on a Due Date in a previous Collection Period and not previously recovered. With respect to any REO Loan, all amounts received in connection with the related REO Property during any Collection Period (including any grace period applicable under the original Mortgage Loan or Serviced Whole Loan), whether as Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, REO Proceeds 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 or Serviced Whole Loan (without regard to any acceleration of amounts due under the predecessor Mortgage Loan or Serviced Whole Loan by reason of default) on a Due Date in a previous Collection Period and not previously recovered. The term “Late Collections” shall specifically exclude Penalty Charges.

 

Legal Fee Reserve Account”: The account created and maintained by the Certificate Administrator pursuant to Section 3.05(l), in the name of the “Legal Fee Reserve Account”, into which the amounts set forth in Section 3.05(l) shall be deposited directly and which must be an Eligible Account.

 

Liquidation Expenses”: All customary, reasonable and necessary “out of pocket” costs and expenses incurred by the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee in connection with the liquidation of any Mortgage Loan or Serviced Whole Loan or the liquidation of a Serviced REO Property or the sale of any Mortgage Loan or Serviced Whole Loan pursuant to Section 3.16 or Section 9.01 of this Agreement (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 (i) with respect to each Specially Serviced Loan or Serviced REO Loan, (ii) with respect to each Mortgage Loan repurchased by a Mortgage Loan Seller (except as specified in the following paragraph), or (iii) with respect to each Defaulted Loan that is a Non-Serviced Mortgage Loan sold by the Special Servicer in accordance with Section 3.16(b) of this Agreement; provided, however, for clarification, should such Non-Serviced Mortgage Loan be sold by the Other Special Servicer, then the Liquidation Fee shall be paid to such Other Special Servicer, in each case as to which the Special Servicer obtains a full, partial or discounted payoff from the related Borrower, a loan purchaser or Mortgage Loan Seller, as applicable, or any Liquidation Proceeds with respect

 

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thereto (in any case, other than amounts for which a Workout Fee has been paid, or will be payable), equal to:

 

(a)          the lesser of:

 

(i)          the product of 1.0% and the proceeds of such full, partial or discounted payoff or the Net Liquidation Proceeds related to such liquidated or repurchased Mortgage Loan or Specially Serviced Loan, as the case may be, in each case exclusive of any portion of such payoff or Net Liquidation Proceeds that represents Penalty Charges;

 

(ii)         $1,000,000; and

 

(iii)        any applicable cap pursuant to Section 3.12(c) of this Agreement.

 

(b)          with respect to any particular liquidation (or partial liquidation), as reduced by the amount of any and all related Offsetting Modification Fees received by the Special Servicer as additional servicing compensation relating to such Specially Serviced Loan, Serviced REO Loan or Mortgage Loan.

 

No Liquidation Fee shall be payable:

 

(a) with respect to clause (v) of the definition of Liquidation Proceeds;

 

(b) with respect to any existing mezzanine indebtedness or any mezzanine indebtedness that may exist on a future date, in connection with the purchase of the related Mortgage Loan by a mezzanine lender if the purchase of the Mortgage Loan occurred within 90 days after the first time that such holder’s option to purchase such Mortgage Loan becomes exercisable; provided, that even if the purchase occurs before such expiration the Liquidation Fee shall be payable to the extent paid by, and collected from, the related Borrower or the related mezzanine lender;

 

(c) the purchase of the related Mortgage Loan by the related Companion Loan Noteholder pursuant to the related Intercreditor Agreement within 90 days after the first time that such Companion Loan Noteholder’s option to purchase such Mortgage Loan becomes exercisable;

 

(d) in the case of a repurchase or replacement of a Mortgage Loan (other than an REO Loan) by the applicable Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement, if the applicable Mortgage Loan Seller repurchases or replaces such Mortgage Loan within the Initial Resolution Period (and giving effect to any applicable Resolution Extension Period) or a repurchase or replacement of the West Burlington Plaza Mortgage Loan by the related Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement in connection with the early defeasance of such Mortgage Loan;

 

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(e) with respect to any Serviced Companion Loan that is the subject of an Other Securitization, to the Special Servicer under this Agreement in connection with (A) a repurchase or replacement of such Serviced Companion Loan by the applicable Mortgage Loan Seller due to a breach of a representation or warranty or a document defect under the related mortgage loan purchase agreement related to the Other Pooling and Servicing Agreement prior to the expiration of the cure period (including any applicable extension thereof) set forth therein or (B) a purchase of the Serviced Companion Loan pursuant to a clean-up call or similar liquidation under the related Other Pooling and Servicing Agreement;

 

(f) in connection with the purchase of any Defaulted Loan by the Special Servicer or any Affiliate thereof or the Directing Holder or any Affiliate thereof if such purchase occurred within 90 days after the transfer of the Defaulted Loan to special servicing;

 

(g) 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 within the Initial Resolution Period (and giving effect to any applicable extension period beyond the end of the Initial Resolution Period set forth in Section 2.03(e) of this Agreement); and

 

(h) if a Mortgage Loan or Serviced Whole Loan becomes a Specially Serviced Loan only because of an event described in clause (a) of the definition of “Specially Serviced Loan” as a result of a payment default at maturity and the related Liquidation Proceeds are received within 3 months following the related maturity date as a result of the related Mortgage Loan or Serviced Whole Loan being refinanced or otherwise repaid in full (provided that the Special Servicer may collect from the related borrower and retain (x) a liquidation fee, (y) such other fees as are provided for in the related Loan Documents and (z) other appropriate fees in connection with such liquidation).

 

Liquidation Proceeds”: Cash amounts (other than Insurance Proceeds and Condemnation Proceeds and REO Proceeds) received by or paid to the Master Servicer or the Special Servicer in connection with: (i) the liquidation of a Mortgaged Property or other collateral constituting security for a Defaulted Loan, through trustee’s sale, foreclosure sale, disposition of REO Property or otherwise, exclusive of any portion thereof required to be released to the related Borrower 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 Borrower; (iii) the sale of a Defaulted Loan or the sale of the West Burlington Plaza Mortgage Loan due to the failure of the related Mortgage Loan Seller to repurchase such Mortgage Loan in connection with an early defeasance; (iv) the repurchase of a Mortgage Loan (or related REO Loan) by the applicable Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement; (v) the purchase of all the Mortgage Loans and all property acquired in respect of any Mortgage Loan by the Sole Certificateholder, the Certificateholder owning a majority of the Percentage Interests in the Controlling Class, the Special Servicer or the Master Servicer pursuant to Section 9.01 of this Agreement; (vi) with respect to any existing mezzanine indebtedness or any mezzanine indebtedness that may exist on a future date, the purchase of the related Mortgage Loan by a mezzanine lender; (vii) in the case of a Mortgage Loan that is part of a Whole Loan, the purchase of such Mortgage Loan by a related Companion Loan Noteholder,

 

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or the applicable designee, as applicable, pursuant to the related Intercreditor Agreement; or (viii) the transfer of any Loss of Value Payments from the Loss of Value Reserve Fund to the Collection Account in accordance with Section 3.06(e) of this Agreement (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 the Mortgaged Property or Mortgaged Properties securing any Non-Serviced Mortgage Loan or Non-Serviced Companion Loan, only the portion of such amounts payable to the holder of the related Non-Serviced Mortgage Loan will be included in Liquidation Proceeds.

 

Loan Agreement”: With respect to any Mortgage Loan or Serviced Whole Loan, the loan agreement, if any, between the related Originator and the Borrower, pursuant to which such Mortgage Loan was made.

 

Loan Documents”: With respect to any Mortgage Loan or Serviced Whole Loan, the documents executed or delivered in connection with the origination or any subsequent modification of such Mortgage Loan or Serviced Whole Loan or subsequently added to the related Mortgage File.

 

Loan Number”: With respect to any Mortgage Loan, the loan number by which such Mortgage Loan was identified on the books and records of the Depositor or any sub-servicer for the Depositor, as set forth in the Mortgage Loan Schedule.

 

Loan-Specific Directing Holder”: With respect to any Servicing Shift Whole Loan, the “controlling holder”, the “directing holder”, “directing lender” or any analogous concept set forth under the related Intercreditor Agreement. Prior to the related Servicing Shift Securitization Date, the “directing holder” with respect to the Servicing Shift Whole Loan will be the holder of the related Controlling Companion Loan. On and after the related Servicing Shift Securitization Date, there will be no Loan-Specific Directing Holder under the Pooling and Servicing Agreement with respect to the Servicing Shift Whole Loan. For the avoidance of doubt, there are no Loan-Specific Directing Holders as of the Closing Date.

 

Lock-Box Account”: With respect to any Mortgaged Property, if applicable, any account created pursuant to the related Loan Documents to receive revenues therefrom. Any Lock-Box Account shall be beneficially owned for federal income tax purposes by the Person who is entitled to receive the reinvestment income or gain thereon in accordance with the terms and provisions of the related Mortgage Loan or Serviced Whole Loan and Section 3.07 of this Agreement, which Person shall be taxed on all reinvestment income or gain thereon. The Master Servicer shall be permitted to make withdrawals therefrom for deposit into the related Cash Collateral Accounts in accordance with the terms of the related Mortgage Loan or Serviced Whole Loan.

 

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Lock-Box Agreement”: With respect to any Mortgage Loan or Serviced Whole Loan, the lock-box agreement, if any, between the related Originator and the Borrower, pursuant to which the related Lock-Box Account, if any, may have been established.

 

Loss of Value Payment”: As defined in Section 2.03(e) of this Agreement.

 

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 3.05(d) of this Agreement. 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 Account”: The segregated non-interest bearing trust account or sub-account created and maintained by the Certificate Administrator pursuant to Section 3.05(b) of this Agreement, which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CD 2017-CD6 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2017-CD6, Lower-Tier Distribution Account” and which must be an Eligible Account or a sub-account of an Eligible Account. The Lower-Tier Distribution Account shall be an asset of the Lower-Tier REMIC.

 

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

 

Lower-Tier Principal Balance”: With respect to any Class of Lower-Tier Regular Interests, initially will equal the original principal balance set forth in the Preliminary Statement herein, and from time to time will equal such amount reduced by the amount of distributions of the Lower-Tier Distribution Amount allocable to principal and Realized Losses allocable thereto in all prior periods as described in Section 4.01(e) of this Agreement, such that at all times the Lower-Tier Principal Balance of a Lower-Tier Regular Interest shall equal the Certificate Balance of the Corresponding Certificates.

 

Lower-Tier Regular Interests”: The Class LA-1 Interest, Class LA-2 Interest, Class LA-3 Interest, Class LA-SB Interest, Class LA-4 Interest, Class LA-5 Interest, Class LA-M Interest, Class LB Interest, Class LC Interest, Class LD Interest, Class LE-RR Interest, Class LF-RR Interest, Class LG-RR Interest and Class LH-RR Interest issued by the Lower-Tier REMIC and held by the Trustee as assets of the Upper-Tier REMIC. Each Lower-Tier Regular Interest (i) is designated as a “regular interest” in the Lower-Tier REMIC, (ii) relates to its Corresponding Certificates and Corresponding Class X Component, (iii) is uncertificated, (iv) has an initial Lower-Tier Principal Balance as set forth in the Preliminary Statement herein, (v) has a Pass-Through Rate equal to the WAC Rate, (vi) has a “latest possible maturity date,” within the meaning of Treasury Regulations Section 1.860G-1(a), that is the Rated Final Distribution Date and (vii) is entitled to the distributions in the amounts and at the times specified in Section 4.01(d) of this Agreement.

 

Lower-Tier REMIC”: A segregated asset pool within the Trust Fund consisting of the Mortgage Loans (exclusive of Excess Interest, the Gurnee Mills Mortgage Loan and the

 

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West Burlington Plaza Mortgage Loan) and the regular interests in the Single Loan REMICs), collections thereon, the Trust’s interest in any REO Property acquired in respect thereof, amounts related thereto held from time to time in the Collection Account and the Lower-Tier Distribution Account, the REO Account (to the extent of the Trust Fund’s interest therein), related amounts in the Interest Reserve Account, amounts held from time to time in the Gain-on-Sale Reserve Account (to the extent of the Trust Fund’s interest therein) in respect thereof and all other property included in the Trust Fund (other than the Loss-of-Value Reserve Fund) that is not in the Upper-Tier REMIC or the Grantor Trust.

 

MAI”: Member of the Appraisal Institute.

 

Major Decision”: Any of the following:

 

(i)        With respect to each Serviced Mortgage Loan and Serviced Whole Loan (other than the Arizona Retail Portfolio Whole Loan for so long as no Arizona Retail Portfolio Control Appraisal Period is continuing):

 

(a)       any proposed or actual foreclosure upon or comparable conversion (which may include acquisitions of an REO Property) of the ownership of properties securing such of the Mortgage Loans (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan as come into and continue in default;

 

(b)       any modification, consent to a modification or waiver of any monetary term or material non-monetary term (including, without limitation, the timing of payments and acceptance of discounted payoffs but excluding late payment charges or Default Interest) of a Serviced Mortgage Loan and any related Serviced Companion Loan or any extension of the Maturity Date of any Serviced Mortgage Loan and any related Serviced Companion Loan, in each case, to the extent the Directing Holder or any affiliate does not own any controlling interest (whether legally, beneficially or otherwise) in the related mezzanine loan, if applicable;

 

(c)       any sale of a Defaulted Loan (that is not a Non-Serviced Mortgage Loan), an REO Property (in each case, other than in connection with the termination of the Trust Fund) or a Defaulted Loan that is a Non-Serviced Mortgage Loan that the Special Servicer is permitted to sell in accordance with the proviso in Section 3.16(b) of this Agreement, in each case for less than the applicable Purchase Price;

 

(d)       any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;

 

(e)       any release of collateral or any acceptance of substitute or additional collateral (other than through defeasance, provided that such defeasance does not otherwise involve a Major Decision) for a Serviced Mortgage Loan and any related Serviced Companion Loan, or any consent to either of the foregoing, other than (i) the release of non-material collateral or (ii) as required pursuant to the specific terms of the

 

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related Serviced Mortgage Loan and any related Serviced Companion Loan and for which there is no lender discretion;

 

(f)        any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to a Serviced Mortgage Loan and any related Serviced Companion Loan or any consent to such a waiver or consent to a transfer of the Mortgaged Property or interests in the Borrower or consent to the incurrence of additional debt, other than any such transfer or incurrence of debt (i) as may be effected without the consent or discretion of the lender under the related loan agreement, (ii) where the Loan Documents include specific objective conditions that must be satisfied for such action where no lender discretion is permitted in order to determine whether such specific objective conditions have been satisfied and (iii) where such specific objective conditions have been satisfied with no exceptions;

 

(g)       any acceptance of an assumption agreement releasing a Borrower from liability under a Serviced Mortgage Loan and any related Serviced Companion Loan other than any such action (i) as may be effected without the consent or discretion of the lender under the related Loan Agreement, (ii) where the Loan Documents include specific objective conditions that must be satisfied for such action where no lender discretion is permitted in order to determine whether such specific objective conditions have been satisfied and (iii) where such specific objective conditions have been satisfied with no exceptions;

 

(h)       any acceleration of a Mortgage Loan or Serviced Whole Loan following a default or an event of default with respect to a Serviced Mortgage Loan and any related Serviced Companion Loan or any initiation of judicial, bankruptcy or similar proceedings under the related Loan Documents or with respect to the related Borrower or Mortgaged Property;

 

(i)        franchise changes with respect to a Serviced Mortgage Loan and any related Serviced Companion Loan for which the lender is required to consent or approve under the related Mortgage Loan documents;

 

(j)        (i) any property management company changes with respect to a Serviced Mortgage Loan and any related Serviced Companion Loan (i) with a principal balance greater than $2,500,000 or (ii) where the property management company will be an Affiliate of the related Borrower following such change;

 

(k)       releases or substitutions of any amount from any escrow accounts, reserve accounts, letters of credit or collateral related to hospitality property improvement plans or earnout or performance escrows, reserves or holdbacks and those set forth on Exhibit Y to this Agreement, other than those required pursuant to the specific terms of the related Serviced Mortgage Loan and any related Serviced Companion Loan and for which no lender discretion is required;

 

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(l)        any determination of an Acceptable Insurance Default; and

 

(m)      any modification, waiver or amendment of an intercreditor agreement, co-lender agreement, participation agreement or similar agreement with any mezzanine lender, holder of a Companion Loan or other subordinate debt holder related to a Mortgage Loan (including a Non-Serviced Mortgage Loan, to the extent consent rights with respect to such modification, waiver or amendment are granted to the holder of the Companion Loan or other subordinate debt under the related agreement) or Serviced Whole Loan, or an action to enforce rights with respect thereto, in each case, to the extent such modification, waiver, amendment or action would materially and adversely affect the holders of the Control Eligible Certificates.

 

(ii)       With respect to the Arizona Retail Portfolio Whole Loan for so long as no Arizona Retail Portfolio Control Appraisal Period is continuing, each Arizona Retail Portfolio Major Decision.

 

For the avoidance of doubt, the Master Servicer and the Special Servicer (each in such capacity) shall not make or be obligated to make any Major Decisions with respect to any Non-Serviced Mortgage Loans and the Directing Holder shall have no consent and/or consultation rights regarding Major Decisions with respect to any Non-Serviced Mortgage Loans, Servicing Shift Mortgage Loan and Conflicted Loans under this Agreement.

 

With respect to any Serviced Whole Loan, for so long as the holder of the related Serviced Companion Loan is the “Controlling Holder”, the “Directing Holder”, “Directing Lender” or any analogous concept under the related Intercreditor Agreement, then with respect to such Serviced Whole Loan, the term “Major Decision” shall mean “Major Decision”, “Major Action” or any analogous concept under the related Intercreditor Agreement.

 

Major Decision Reporting Package”: As defined in Section 6.07(a).

 

Management Agreement”: With respect to any Mortgage Loan or Serviced Whole Loan, the Management Agreement, if any, by and between the Manager and the related Borrower, or any successor Management Agreement between such parties.

 

Manager”: With respect to any Mortgage Loan or Serviced Whole Loan, any property manager for the related Mortgaged Properties.

 

Master Servicer”: Wells Fargo Bank, National Association, a national banking association, or its successor in interest, or any successor master servicer appointed as provided herein.

 

Master Servicer Major Decision”: Any Major Decision under clause (l) of the definition of “Major Decision”.

 

Master Servicer Non-Major Decision” Any of the following:

 

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(a)       approving leases, lease modifications or amendments or any requests for subordination, non-disturbance and attornment agreements for leases (i) equal to or less than the lesser of (A) 30,000 square feet and (B) 30% of the net rentable area at the related Mortgaged Property and (ii) which are not ground leases;

 

(b)       approving any waiver regarding the receipt of financial statements if such waiver does not involve permitting delivery of financial statements less than quarterly or more than 60 days after the end of the calendar quarter;

 

(c)       approving annual budgets for the related Mortgaged Property so long as the budget does not provide for (x) increases in operating expenses equal to or more than 110% of the amount budgeted therefor for the prior year and (y) payments to a borrower affiliate;

 

(d)       approving immaterial rights-of-way and immaterial easements, and consent to subordination of the related Mortgage Loan or Serviced Whole Loan to such immaterial rights-of-way or easements;

 

(e)       any modification, consent to a modification or waiver of any immaterial non-monetary term (excluding the timing of payments but including late payment charges or Default Interest) of a Serviced Mortgage Loan and any related Serviced Companion Loan;

 

(f)        other than with respect to reserves and escrows which are addressed in clause (h) below, any release of collateral or any acceptance of substitute or additional collateral for a Serviced Mortgage Loan and any related Serviced Companion Loan or any consent to either of the foregoing, to the extent the foregoing is not otherwise a Major Decision;

 

(g)       any property management company changes with respect to a Serviced Mortgage Loan and any related Serviced Companion Loan (i) with a principal balance less than or equal to $2,500,000 and (ii) where the property management company will not be an Affiliate of the related Borrower following such change;

 

(h)       releases or substitutions of any amounts from any escrow accounts, reserve accounts, letters of credit or collateral, if required pursuant to the specific terms of the related Serviced Mortgage Loan and any related Serviced Companion Loan and for which no lender discretion is required and other than those set forth on Exhibit Y to this Agreement;

 

(i)        any acceptance of an assumption agreement releasing a Borrower from liability under a Serviced Mortgage Loan and any related Serviced Companion Loan if (i) such action may be effected without the consent or discretion of the lender under the related Loan Agreement, (ii) the Loan Documents include specific objective conditions that must be satisfied for such action where no lender discretion is permitted in

 

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determining whether such specific objective conditions have been satisfied and (iii) such specific objective conditions have been satisfied with no exceptions;

 

(j)        any modification, waiver or amendment of an Intercreditor Agreement, co-lender agreement, participation agreement or similar agreement with any mezzanine lender, holder of a Companion Loan or other subordinate debt holder related to a Mortgage Loan (including a Non-Serviced Mortgage Loan, to the extent consent rights with respect to such modification, waiver or amendment are granted to the holder of the Companion Loan or other subordinate debt under the related agreement) or such Serviced Whole Loan, or an action to enforce rights with respect thereto, to the extent the foregoing is not otherwise a Major Decision; and

 

(k)       any other action that does not constitute a Major Decision or a Special Servicer Non-Major Decision.

 

The Master Servicer will process and consent to or refuse consent to, as applicable, all Master Servicer Major Decisions and Master Servicer Non-Major Decisions with respect to any non-Specially Serviced Loan (other than a Non-Serviced Mortgage Loan). The Master Servicer will also be required to obtain the consent of the Directing Holder, and will be required to consult with the Operating Advisor, in connection with any Master Servicer Major Decision with respect to any non-Specially Serviced Loan (other than a Non-Serviced Mortgage Loan), to the extent described herein. With respect to any non-Specially Serviced Loan (other than a Non-Serviced Mortgage Loan), the Master Servicer will be required to process and consent to any action that is a Master Servicer Major Decision or a Master Servicer Non-Major Decision.

 

Master Servicer Proposed Course of Action Notice”: As defined in Section 2.03(k)(iv) of this Agreement.

 

Master Servicer Remittance Date”: With respect to any Distribution Date, the Business Day preceding such Distribution Date.

 

Master Servicer Servicing Personnel”: The divisions and individuals of the Master Servicer who are involved in the performance of the duties of the Master Servicer under this Agreement.

 

Master Servicer Termination Event”: As defined in Section 7.01(a) of this Agreement.

 

Master Servicer Website”: The internet website maintained by the Master Servicer; initially located at “www.wellsfargo.com/com/comintro”.

 

Master Servicing Fee”: With respect to each Mortgage Loan and for any Distribution Date, an amount per interest accrual period related to such Mortgage Loan equal to the product of (i) the respective Master Servicing Fee Rate (adjusted to a monthly rate) and (ii) the Stated Principal Balance of such Mortgage Loan as of the Due Date in the immediately

 

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preceding Collection Period (without giving effect to payments of principal on such Mortgage Loan on such Due Date). For the avoidance of doubt, with respect to any Subordinate Companion Loan, no Master Servicing Fee shall accrue or be payable on the principal balance thereof.

 

Master Servicing Fee Rate”: With respect to each Mortgage Loan, the rate per annum set forth on Exhibit B to this Agreement.

 

Material Breach”: As defined in Section 2.03(e) of this Agreement.

 

Material Defect”: As defined in Section 2.03(e) of this Agreement.

 

Maturity Date”: With respect to any Mortgage Loan or Serviced 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 or Serviced Companion Loan by reason of default thereunder or (ii) any grace period permitted by the related Mortgage Note.

 

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

 

Modification Fees”: With respect to any Serviced Mortgage Loan and any related Serviced Companion Loan, any and all fees with respect to a modification, restructure, extension, waiver or amendment that modifies, restructures, extends, amends or waives any term of the related Loan Documents (as evidenced by a signed writing) agreed to by the Master Servicer or the Special Servicer (other than all Assumption Fees, consent fees, assumption application fees, defeasance fees and fees similar to the foregoing). For the avoidance of doubt, Special Servicing Fees, Workout Fees and Liquidation Fees due to the Special Servicer in connection with a modification, restructure, extension, waiver or amendment shall not be considered Modification Fees. For each modification, restructure, extension, waiver or amendment in connection with working out of a Specially Serviced Loan, the Modification Fees collected from the related Borrower shall be subject to a cap of 1.0% of the outstanding principal balance of such Mortgage Loan or Serviced Companion Loan on the closing date of the related modification, restructure, extension, waiver or amendment (prior to giving effect to such modification, restructure, extension, waiver or amendment); provided that no aggregate cap shall exist in connection with the amount of Modification Fees which may be collected from the related Borrower with respect to any Specially Serviced Loan or REO Loan.

 

Modified Mortgage Loan”: Any Specially Serviced Loan which has been modified by the Special Servicer pursuant to Section 3.26 of this Agreement in a manner that:

 

(a)       reduces or delays the amount or timing of any payment of principal or interest due thereon (other than, or in addition to, bringing current Periodic Payments with respect to such Mortgage Loan or Serviced Companion Loan), including any reduction in the Periodic Payment;

 

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(b)       except as expressly contemplated by the related Mortgage, results in a release of the lien of the Mortgage on any material portion of the related Mortgaged Property without a corresponding Principal Prepayment in an amount not less than the fair market value (as is), as determined by an Appraisal delivered to the Special Servicer (at the expense of the related Borrower and upon which the Special Servicer may conclusively rely), of the property to be released; or

 

(c)       in the reasonable good faith judgment of the Special Servicer, otherwise materially impairs the value of the security for such Mortgage Loan or Serviced Companion Loan or reduces the likelihood of timely payment of amounts due thereon.

 

Moffett Place Building 4 Companion Loans”: As defined in the Preliminary Statement.

 

Moffett Place Building 4 Mortgage Loan”: As defined in the Preliminary Statement.

 

Moffett Place Building 4 Service Providers”: With respect to the Moffett Place Building 4 Companion Loans, the related Other Trustee, Other Servicer, Other Special Servicer and any related sub-servicer, as applicable, and any other Person that makes principal and/or interest advances in respect of such mortgage loan pursuant to any related Other Pooling and Servicing Agreement.

 

Moffett Place Building 4 Whole Loan”: The Moffett Place Building 4 Companion Loans, together with the Moffett Place Building 4 Mortgage Loan. References herein to the Moffett Place Building 4 Whole Loan shall be construed to refer to the aggregate indebtedness under the Moffett Place Building 4 Mortgage Loan and the Moffett Place Building 4 Companion Loans.

 

Moody’s”: Moody’s Investors Service, Inc., or its successor in interest. If neither such rating agency 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 other parties hereto, and specific ratings of Moody’s herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

Morningstar”: Morningstar Credit Ratings, LLC, or any successor in interest. If neither such rating agency 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 other parties hereto, and specific ratings of Morningstar herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

Mortgage”: The mortgage, deed of trust or other instrument creating a first lien on or first priority ownership interest in a Mortgaged Property securing a Mortgage Note.

 

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Mortgage File”: With respect to any Mortgage Loan or Serviced Companion Loan, collectively, the mortgage documents listed in Section 2.01(a)(i) through Section 2.01(a)(xxi) of this Agreement pertaining to such particular Mortgage Loan or Serviced Companion Loan and any additional documents required to be added to such Mortgage File pursuant to the express provisions of this Agreement; provided that whenever the term “Mortgage File” is used to refer to documents actually received by the Depositor, Trustee, or Custodian, such term shall not be deemed to include such documents and instruments required to be included therein unless they are actually so received.

 

Mortgage Loan”: Each of the mortgage loans transferred and assigned to the Trustee pursuant to Section 2.01 of this Agreement and from time to time held in the Trust Fund. The Mortgage Loans originally so transferred, assigned and held are identified on the Mortgage Loan Schedule as of the Closing Date. Such term shall include any REO Loan, Specially Serviced Loan or any Mortgage Loan that has been defeased in whole or in part. Such term shall not include Serviced Companion Loans or Non-Serviced Companion Loans but shall include Non-Serviced Mortgage Loans.

 

Mortgage Loan Purchase Agreements”: Each of the GACC Purchase Agreement, the CREFI Purchase Agreement and the Argentic Purchase Agreement.

 

Mortgage Loan Schedule”: The list of Mortgage Loans included in the Trust Fund as of the Closing Date being attached as Exhibit B to this Agreement, which list shall set forth the following information with respect to each Mortgage Loan:

 

(a)        the Loan Number;

 

(b)        the Mortgage Loan name;

 

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

 

(d)        the Mortgage Rate in effect as of the Cut-off Date;

 

(e)        the original principal balance;

 

(f)         the Stated Principal Balance as of the Cut-off Date;

 

(g)        the Maturity Date or Anticipated Repayment Date for each Mortgage Loan;

 

(h)        the Due Date;

 

(i)         the amount of the Periodic Payment due on the first Due Date following the Cut-off Date;

 

(j)         the Servicing Fee Rate;

 

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(k)        whether the Mortgage Loan is an Actual/360 Loan;

 

(l)         whether any letter of credit is held by the lender as a beneficiary or is assigned as security for such Mortgage Loan;

 

(m)       the Revised Rate of such Mortgage Loan, if any;

 

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

 

(o)        whether the Mortgage Loan is secured in any part by a leasehold interest; and

 

(p)        whether the Mortgage Loan has any related mezzanine debt or other subordinate debt.

 

Such list may be in the form of more than one list, collectively setting forth all of the information required. A comparable list shall be prepared with respect to each Serviced Companion Loan.

 

Mortgage Loan Seller Sub-Servicer”: A Servicing Function Participant or Sub-Servicer required to be retained by the Master Servicer by a Mortgage Loan Seller, as listed on Exhibit X to this Agreement, or any successor thereto.

 

Mortgage Loan Sellers”: Each of GACC, CREFI and Argentic.

 

Mortgage Note”: With respect to any Mortgage Loan or Serviced Companion Loan as of any date of determination, the note or other evidence of indebtedness and/or agreements evidencing the indebtedness of a Borrower under such Mortgage Loan or Serviced Companion Loan including any amendments or modifications, or any renewal or substitution notes, as of such date.

 

Mortgage Pool”: All of the Mortgage Loans and any successor REO Loans, collectively. The Mortgage Pool does not include the Companion Loans or any related REO Loans.

 

Mortgaged Property”: The underlying property securing a Mortgage Loan including any REO Property, consisting of a fee simple estate, and, with respect to certain Mortgage Loans, a leasehold estate or both a leasehold estate and a fee simple estate, or a leasehold estate in a portion of the property and a fee simple estate in the remainder, in a parcel of land improved by a commercial or multifamily property, together with any personal property, fixtures, leases and other property or rights pertaining thereto.

 

Mortgage Rate”: With respect to each Mortgage Loan or any related Companion Loan, as applicable, and any Interest Accrual Period, the per annum rate at which interest accrues on such Mortgage Loan or Serviced Companion Loan, as applicable, during such period (in the absence of a default), as set forth in the related Mortgage Note from time to time, without giving effect to any Default Rate or any Revised Rate.

 

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Net Condemnation Proceeds”: Condemnation Proceeds, to the extent such proceeds are not to be applied to the restoration, preservation or repair of the related Mortgaged Property or released to the Borrower in accordance with the express requirements of the Loan Documents or other documents included in the Mortgage File or in accordance with the Servicing Standard.

 

Net Default Interest”: With respect to any Distribution Date, an amount equal to the sum of (i) the amount of the aggregate collected Default Interest allocable to the Mortgage Loans received during the preceding Collection Period, minus (ii) any portions thereof withdrawn from (A) the Collection Account pursuant to Section 3.06(a)(ix) of this Agreement for Advance Interest Amounts and unreimbursed Additional Trust Fund Expenses (including Special Servicing Fees, Liquidation Fees and Workout Fees) incurred on the related Mortgage Loan during or prior to such Collection Period and (B) each Serviced Whole Loan Collection Account pursuant to Section 3.06(b)(ix) for Advance Interest Amounts and unreimbursed Additional Trust Fund Expenses incurred on the related Serviced Whole Loan during or prior to such Collection Period.

 

Net Insurance Proceeds”: Insurance Proceeds, to the extent such proceeds are not to be applied to the restoration of the related Mortgaged Property or released to the Borrower in accordance with the express requirements of the Loan Documents or other documents included in the Mortgage File or in accordance with prudent and customary servicing practices.

 

Net Liquidation Proceeds”: The Liquidation Proceeds received with respect to any Mortgage Loan or Serviced Whole Loan net of the amount of (i) Liquidation Expenses incurred with respect thereto and (ii) with respect to proceeds received in connection with the taking of a Mortgaged Property (or portion thereof) by the power of eminent domain in condemnation, amounts required to be applied to the restoration or repair of the related Mortgaged Property.

 

Net Mortgage Rate”: With respect to any Mortgage Loan and any Distribution Date, the per annum rate equal to the Mortgage Rate for such Mortgage Loan for the related Interest Accrual Period (without regard to any increase in the interest of any ARD Loan after the related Anticipated Repayment Date), minus, for any such Mortgage Loan, the aggregate of the applicable Servicing Fee Rate, Certificate Administrator/Trustee Fee Rate, Operating Advisor Fee Rate, CREFC® Intellectual Property Royalty License Fee Rate, the fee rate paid to the Sub-Servicer, if any, with respect to any Non-Serviced Mortgage Loan and the related Non-Serviced Mortgage Loan Primary Servicing Fee Rate. The “Net Mortgage Rate” for purposes of calculating Pass-Through Rates and Withheld Amounts shall be the Net Mortgage Rate of such Mortgage Loan without taking into account any modification, waiver or amendment of the terms of the related Mortgage Loan, whether agreed to by the Master Servicer or the Special Servicer or resulting from a bankruptcy, insolvency or similar proceeding involving the related Borrower. The Net Mortgage Rate shall not be reduced by any Operating Advisor Fee Rate following the Operating Advisor’s resignation pursuant to Section 6.04(e) or the termination of the Operating Advisor pursuant to Section 7.07(e).

 

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Notwithstanding the foregoing, if any such Mortgage Loan does not accrue interest on the basis of a 360-day year consisting of twelve 30-day months, then, solely for purposes of calculating the Pass-Through Rate on the Regular Certificates, the Net Mortgage Rate of such Mortgage Loan for any Interest Accrual Period will be the annualized rate at which interest would have to accrue in respect of such Mortgage Loan or Serviced Companion 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 at the related Net Mortgage Rate during such Interest Accrual Period; provided, however, that with respect to each such Mortgage Loan, the Net Mortgage Rate for the one-month period (i) prior to the Due Dates in (a) January and February in each year that is not a leap year or (b) February only in each year that is a leap year (in either case, unless the related Distribution Date is the final Distribution Date) shall be determined net of any Withheld Amounts from that month and (ii) preceding the Due Date in March (or February if the related Distribution Date is the final Distribution Date) (commencing in 2018), shall be determined inclusive of the Withheld Amounts, if applicable, from the immediately preceding February, and, if applicable, January.

 

Net Prepayment Interest Excess”: The excess amount, if any, that the aggregate of all Prepayment Interest Excess for all Serviced Mortgage Loans and any related Serviced Companion Loans that the Master Servicer is servicing exceeds the aggregate of all Compensating Interest Payments for such Serviced Mortgage Loans and any related Serviced Companion Loans as of any related Distribution Date.

 

Net REO Proceeds”: With respect to each Serviced REO Property, REO Proceeds with respect to such REO Property net of any insurance premiums, taxes, assessments and other costs and expenses permitted to be paid therefrom pursuant to Section 3.15(b) of this Agreement.

 

New Lease”: Any lease of a Serviced REO Property entered into on behalf of the Lower-Tier REMIC if such Trust REMIC has the right to renegotiate the terms of such lease, including any lease renewed or extended on behalf of such REMIC.

 

NMWHFIT”: A “Non-Mortgage Widely Held Fixed Investment Trust” as that term is defined in Treasury Regulations Section 1.671-5(b)(12) or successor provisions.

 

Non-Conflicted Special Servicer”: With respect to any Conflicted Special Servicer Mortgage Loan, a special servicer that is not a Borrower Party and satisfies all of the eligibility requirements applicable to the special servicer set forth in this Agreement.

 

Non-Directing Holder”: With respect to any Companion Loan, the “Non-Directing Holder”, “Non-Controlling Note Holder” or any analogous concept under the related Intercreditor Agreement.

 

Non-Exempt Person”: Any Person other than a Person who either (i) is a U.S. person or (ii) has provided to the Certificate Administrator for the relevant year such duly executed form(s) or statement(s) which may, from time to time, be prescribed by law and which,

 

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pursuant to applicable provisions of (A) any income tax treaty between the United States and the country of residence of such Person, (B) the Code or (C) any applicable rules or regulations in effect under clauses (A) or (B) above, permit the Certificate Administrator to make such payments free of any obligation or liability for withholding, provided that duly executed form(s) provided to the Certificate Administrator pursuant to Section 5.02(m), shall be sufficient to evidence that such providing Person is not a Non-Exempt Person.

 

Non-Reduced Certificates”: As of any date of determination, any Class of Principal Balance Certificates then outstanding for which (a)(1) the initial Certificate Balance of such Class of Certificates minus (2) the sum (without duplication) of (x) the aggregate payments of principal (whether as principal prepayments or otherwise) distributed to the Holders of such Class of Certificates as of such date of determination, (y) any Appraisal Reduction Amounts allocated to such Class of Certificates as of such date of determination and (z) any Realized Losses previously allocated to such Class of Certificates as of such date of determination, 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 that Class of Certificates as of such date of determination.

 

Non-Serviced Companion Loan”: With respect to any Non-Serviced Whole Loan, any related mortgage loan not included in the Trust that is serviced under another agreement and that is generally (a) payable on a pari passu basis with the related Mortgage Loan included in the Trust to the extent set forth in the related Intercreditor Agreement or (b) subordinated in right of payment to the related Mortgage Loan included in the Trust to the extent set forth in the related Intercreditor Agreement. The U-Haul SAC Portfolios 14, 15, 17 Companion Loans, the Burbank Office Portfolio Companion Loans, the IRG Portfolio Companion Loan, the Station Place III Companion Loans, the Moffett Place Building 4 Companion Loans, the Corporate Woods Portfolio Companion Loans, the Integrated Health Campus Companion Loan, the Colorado Center Companion Loans, the Gurnee Mills Companion Loans, the Cleveland East Companion Loan and the Covance Business Center Companion Loans are the only Non-Serviced Companion Loans related to the Trust.

 

Non-Serviced Mortgage Loan”: With respect to any Non-Serviced Whole Loan, a Mortgage Loan included in the Trust but serviced under another agreement. The U-Haul SAC Portfolios 14, 15, 17 Mortgage Loan, the Burbank Office Portfolio Mortgage Loan, the IRG Portfolio Mortgage Loan, the Station Place III Mortgage Loan, the Moffett Place Building 4 Mortgage Loan, the Corporate Woods Portfolio Mortgage Loan, the Integrated Health Campus Mortgage Loan, the Colorado Center Mortgage Loan, the Gurnee Mills Mortgage Loan, the Cleveland East Mortgage Loan and the Covance Business Center Mortgage Loan are the only Non-Serviced Mortgage Loans related to the Trust.

 

Non-Serviced Mortgage Loan Primary Servicing Fee Rate”: The “primary servicing fee rate” or “pari passu primary servicing rate” (each as defined or set forth in the applicable Other Pooling and Servicing Agreement) and any other servicing fee rate (other than those payable to the applicable Other Special Servicer) applicable to any Non-Serviced Mortgage Loan. The Non-Serviced Mortgage Loan Primary Servicing Fee Rate for (A) the U-Haul SAC

 

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Portfolios 14, 15, 17 Mortgage Loan will be 0.00250%, (B) the Burbank Office Portfolio Mortgage Loan will be 0.00125%, (C) the IRG Portfolio Mortgage Loan will be 0.00250%, (D) the Station Place III Mortgage Loan will be 0.00250%, (E) the Moffett Place Building 4 Mortgage Loan will be 0.00250%, (F) the Corporate Woods Portfolio Mortgage Loan will be 0.00250%, (G) the Integrated Health Campus Mortgage Loan will be 0.00250%, (H) the Colorado Center Mortgage Loan will be 0.00125%, (I) the Gurnee Mills Mortgage Loan will be 0.00250%, (J) the Cleveland East Mortgage Loan will be 0.00250% and (K) the Covance Business Center Mortgage Loan will be 0.00250%.

 

Non-Serviced Mortgage Loan Service Providers”: With respect to (A) the U-Haul SAC Portfolios 14, 15, 17 Whole Loan, the U-Haul SAC Portfolios 14, 15, 17 Service Providers, (B) the Burbank Office Portfolio Whole Loan, the Burbank Office Portfolio Service Providers, (C) the IRG Portfolio Whole Loan, the IRG Portfolio Service Providers, (D) the Station Place III Whole Loan, the Station Place III Service Providers, (E) the Moffett Place Building 4 Whole Loan, the Moffett Place Building 4 Service Providers, (F) the Corporate Woods Portfolio Whole Loan, the Corporate Woods Portfolio Service Providers, (G) the Integrated Health Campus Whole Loan, the Integrated Health Campus Service Providers, (H) the Colorado Center Whole Loan, the Colorado Center Service Providers, (I) the Gurnee Mills Whole Loan, the Gurnee Mills Service Providers, (J) the Cleveland East Whole Loan, the Cleveland East Service Providers, and (K) the Covance Business Center Whole Loan, the Covance Business Center Service Providers.

 

Non-Serviced Whole Loan Custodian”: With respect to any Non-Serviced Mortgage Loan, the applicable other “custodian” under the Other Pooling and Servicing Agreement that governs the servicing and administration of the related Non-Serviced Whole Loan.

 

Non-Serviced Whole Loans”: Any mortgage loan that is not serviced under this Agreement that is divided into two or more notes, which includes a Mortgage Loan included in the Trust but serviced under another agreement and one or more mortgage notes not included in the Trust and serviced under another agreement. References herein to a Non-Serviced Whole Loan shall be construed to refer to the aggregate indebtedness under the related notes. The U-Haul SAC Portfolios 14, 15, 17 Whole Loan, the Burbank Office Portfolio Whole Loan, the IRG Portfolio Whole Loan, the Station Place III Whole Loan, the Moffett Place Building 4 Whole Loan, the Corporate Woods Portfolio Whole Loan, the Integrated Health Campus Whole Loan, the Colorado Center Whole Loan, the Gurnee Mills Whole Loan, the Cleveland East Whole Loan and the Covance Business Center Whole Loan are the only Non-Serviced Whole Loans related to the Trust.

 

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

 

Nonrecoverable Advance”: Any Nonrecoverable P&I Advance, Nonrecoverable Servicing Advance or Nonrecoverable Workout-Delayed Reimbursement Amounts.

 

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Nonrecoverable P&I Advance”: Any P&I Advance previously made or proposed to be made in respect of a Mortgage Loan or REO Loan which the Master Servicer, the Special Servicer, in each case in accordance with the Servicing Standard and Sections 4.07(c), 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, from late payments, Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and other collections on or in respect of the related Mortgage Loan or REO Loan, which shall be evidenced by an Officer’s Certificate as provided by Section 4.07(c) of this Agreement.

 

Nonrecoverable Servicing Advance”: Any Servicing Advance previously made or proposed to be made in respect of a Serviced Mortgage Loan and any related Serviced Companion Loan or any Serviced REO Property that the Master Servicer, the Special Servicer, in each case in accordance with the Servicing Standard and Section 3.21(d) of this Agreement, 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, from late payments, Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and other collections on or in respect of the related Mortgage Loan, Serviced Whole Loan or Serviced REO Loan, which shall be evidenced by an officer certificate as provided by Section 3.21(d) of this Agreement. The determination as to the recoverability of any Servicing Advance previously made or proposed to be made in respect of any Non-Serviced Whole Loan (or related REO Property) shall be made by the applicable servicer under, and in accordance with the terms of, the related Other Pooling and Servicing Agreement. Any such determination made by any such party shall be conclusive and binding on the Certificateholders and may, in all cases, be conclusively relied upon by the Master Servicer, the Special Servicer and the Trustee, as applicable.

 

Nonrecoverable Workout-Delayed Reimbursement Amounts”: Any Workout-Delayed Reimbursement Amounts when the Person making such determination in accordance with the procedures specified for Nonrecoverable Servicing Advances or Nonrecoverable P&I Advances, as applicable, and taking into account factors such as all other outstanding Advances, either (a) has determined that such Workout-Delayed Reimbursement Amounts, would not ultimately be recoverable from late payments or any other recovery on or in respect of the related Mortgage Loan, Serviced Whole Loan or REO Loans or (b) has determined that such Workout-Delayed Reimbursement Amounts would not ultimately be recoverable, along with any other Workout-Delayed Reimbursement Amounts and Nonrecoverable Advances, out of the principal portion of future collections on all of the Mortgage Loans and REO Properties and from general principal collections in the Collection Account.

 

Notice of Termination”: Any of the notices given to the Trustee, the Certificate Administrator and the Master Servicer by the Certificateholder owning a majority of the Percentage Interests in the Controlling Class, the Special Servicer or the Master Servicer pursuant to Section 9.01(c) of this Agreement.

 

Notice to Refer”: As defined in Section 2.03(k)(ii).

 

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Notional Amount”: As of any date of determination: (i) with respect to each of the Class X-A, Class X-B and Class X-D Certificates as a Class, the related Class X Notional Amount as of such date of determination and (ii) with respect to any Class X Certificate, the product of the Percentage Interest evidenced by such Certificate and the related Class X Notional Amount.

 

NRSRO”: Any nationally recognized statistical ratings organization.

 

NRSRO Certification”: A certification (a) executed by a NRSRO in favor of the 17g-5 Information Provider substantially in the form attached hereto as Exhibit Z 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 been engaged to rate any securities backed, in whole or in part, by a Serviced Pari Passu Companion Loan, or that such NRSRO has provided the Depositor with the appropriate certifications pursuant to paragraph (e) of Rule 17g-5 of the Exchange Act, such NRSRO has access to the Depositor’s 17g-5 website and such NRSRO will keep such information confidential, except to the extent such information has been made available to the general public.

 

Officer’s Certificate”: A certificate signed by the Chairman of the Board, the Vice Chairman of the Board, the President or a Vice President (however denominated) and by the Treasurer, the Secretary, one of the Assistant Treasurers or Assistant Secretaries, any Trust Officer or other officer of the Master Servicer, Special Servicer, Additional Servicer, Operating Advisor or Asset Representations Reviewer customarily performing functions similar to those performed by any of the above designated officers, any Servicing Officer and also with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, or an authorized officer of the Depositor, and delivered to the Depositor, the Trustee, the Certificate Administrator, the Special Servicer or the Master Servicer, as the case may be.

 

Offsetting Modification Fees”: With respect to any Serviced Mortgage Loan and any related Serviced Companion Loan or Serviced REO Loan and with respect to any Workout Fee or Liquidation Fee payable by the Trust, any and all Modification Fees collected by the Special Servicer as additional servicing compensation, but only to the extent that (1) such Modification Fees were earned and collected by the Special Servicer (A) in connection with the workout or liquidation (including partial liquidation) of a Specially Serviced Loan or Serviced REO Loan as to which the subject Workout Fee or Liquidation Fee became payable or (B) in connection with any workout of a Specially Serviced Loan that closed within the prior 18 months (determined as of the closing day of the workout or liquidation as to which the subject Workout Fee or Liquidation Fee became payable) and (2) such Modification Fees were earned in connection with a modification, restructure, extension, waiver or amendment of such Mortgage Loan, Serviced Whole Loan or Serviced REO Loan at a time when such Mortgage Loan, Serviced Whole Loan or Serviced REO Loan was a Specially Serviced Loan.

 

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

 

Operating Advisor Annual Report”: As defined in Section 3.31(c) of this Agreement.

 

Operating Advisor Consultation Event”: The event that occurs when either (i) the aggregate Certificate Balances of the RR Certificates (taking into account the application of any Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balances of such classes) is 25% or less of the initial aggregate Certificate Balances of the RR Certificates or (ii) a Control Termination Event has occurred and is continuing (or a Control Termination Event would occur and 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 rights equal to $10,000 with respect to any Mortgage Loan or such lesser amount as the related Borrower agrees to pay, payable pursuant to Section 3.06 of this Agreement; provided, no such fee shall be payable unless paid by the related Borrower. The Operating Advisor may in its sole discretion reduce the Operating Advisor Consulting Fee with respect to any Major Decision. The Master Servicer or Special Servicer, as applicable, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the related Borrower 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 with the Operating Advisor prior to any such waiver or reduction. No Operating Advisor Consulting Fee shall be payable with respect to any Subordinate Companion Loan, any Non-Serviced Whole Loan or any Servicing Shift Whole Loan.

 

Operating Advisor Fee”: With respect to each Serviced Mortgage Loan (other than any Servicing Shift Mortgage Loan) and any Distribution Date, an amount per Interest Accrual Period equal to the product of (i) the applicable Operating Advisor Fee Rate and (ii) the Stated Principal Balance of such Mortgage Loan as of the Due Date in the immediately preceding Collection Period (without giving effect to payments of principal on such Mortgage Loan on such Due Date). Such fee shall be in addition to, and not in lieu of, any other fee or other sum payable to the Operating Advisor under this Agreement. The Operating Advisor Fee shall be calculated in accordance with the provisions of Section 1.02(a) of this Agreement. For the avoidance of doubt, the Operating Advisor Fee shall be payable from the Lower-Tier REMIC. For the avoidance of doubt, no Operating Advisor Fee shall accrue on the principal balance of, or be payable with respect to, any Subordinate Companion Loan, Serviced Pari Passu Companion Loan, any Non-Serviced Whole Loan or any Servicing Shift Mortgage Loan. No Operating Advisor Fee shall accrue following the Operating Advisor’s resignation pursuant to Section 6.04(e) or the termination of the Operating Advisor pursuant to Section 7.07.

 

Operating Advisor Fee Rate”: For each Interest Accrual Period, a per annum rate equal to (a) 0.0027% with respect to all Serviced Mortgage Loans (except any Servicing Shift Mortgage Loan, the Headquarters Plaza Mortgage Loan and the Lightstone Portfolio

 

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Mortgage Loan), (b) 0.0041% with respect to the Headquarters Plaza Mortgage Loan and (c) 0.0052% with respect to the Lightstone Portfolio Mortgage Loan. At any time there is no Operating Advisor, the Operating Advisor Fee Rate shall be 0%.

 

Operating Advisor Standard”: The requirement that the Operating Advisor shall 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 (other than any Servicing Shift Whole Loan) for the benefit of the related Companion Loan Noteholders (as a collective whole as if such Certificateholders and Companion Loan Noteholders constituted a single lender, taking into account the pari passu nature of any related pari passu Companion Loan (and with respect to any Serviced Whole Loan with a related Subordinate Companion Loan, taking into account the subordinate nature of such Subordinate Companion Loan)), and not to Holders of any particular Class of Certificateholders (as determined by the Operating Advisor in the exercise of its good faith and reasonable judgment), and 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 Borrowers, property managers, 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 respective affiliates.

 

Operating Advisor Surveillance Personnel”: The divisions and individuals of the Operating Advisor who are involved in the performance of the duties of the Operating Advisor under this Agreement.

 

Operating Advisor Termination Event”: As defined in Section 7.07(a) of this Agreement.

 

Opinion of Counsel”: A written opinion of counsel, who may, without limitation, be counsel for the Depositor, the Special Servicer or the Master Servicer, as the case may be, acceptable to the Certificate Administrator and the Trustee, except that any opinion of counsel relating to (a) qualification of any Trust REMIC as a REMIC or the imposition of tax under the REMIC Provisions on any income or property of any Trust REMIC, (b) compliance with the REMIC Provisions (including application of the definition of “Independent Contractor”), (c) qualification of the Grantor Trust as a grantor trust or (d) a resignation of the Master Servicer or the Special Servicer pursuant to Section 6.04(b) of this Agreement, must be an opinion of counsel who is Independent of the Depositor, the Master Servicer and the Special Servicer.

 

Originator”: Any of (i) the Mortgage Loan Sellers and (ii) with respect to any Mortgage Loan acquired by a Mortgage Loan Seller, the originator of such Mortgage Loan.

 

Other 17g-5 Information Provider”: The applicable other “17g-5 information provider” under an Other Pooling and Servicing Agreement relating to a Serviced Companion Loan. The Depositor shall inform the other parties hereto of the name and contact information for any Other 17g-5 Information Provider existing as of the Closing Date. The name and contact information of any such Other 17g-5 Information Provider as of the Closing Date is set forth on

 

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Schedule VIII hereto. Each party hereto shall be entitled to conclusively rely upon the information set forth on Schedule VIII until such party receives notice of any change thereto.

 

Other Asset Representations Reviewer”: The applicable other “asset representations reviewer” under an Other Pooling and Servicing Agreement relating to a Serviced Companion Loan or a Non-Serviced Companion Loan, as applicable.

 

Other Depositor”: The applicable other “depositor” under an Other Pooling and Servicing Agreement relating to a Serviced Companion Loan or a Non-Serviced Companion Loan, as applicable.

 

Other Indemnified Parties”: As defined in Section 1.04 of this Agreement.

 

Other Operating Advisor”: The applicable other “operating advisor” or “trust advisor” under an Other Pooling and Servicing Agreement relating to a Serviced Companion Loan or a Non-Serviced Companion Loan, as applicable.

 

Other Operating Advisor Consultation Trigger Event”: With respect to any Regulation RR Other PSA, an “Operating Advisor Consultation Trigger Event” (or analogous concept) under such related Regulation RR Other PSA.

 

Other Pooling and Servicing Agreement”: A pooling and servicing agreement or other applicable servicing agreement relating to a Serviced Companion Loan or a Non-Serviced Whole Loan, as applicable. The Other Pooling and Servicing Agreements related to the Trust as of the Closing Date are (A) in the case of the Non-Serviced Whole Loans, (i) with respect to each of the U-Haul SAC Portfolios 14, 15, 17 Whole Loan, the IRG Portfolio Whole Loan, the Station Place III Whole Loan, the Moffett Place Building 4 Whole Loan and the Covance Business Center Whole Loan, the JPMDB 2017-C7 Pooling and Servicing Agreement, (ii) with respect to the Burbank Office Portfolio Whole Loan, the DBUBS 2017-BRBK Trust and Servicing Agreement, (iii) with respect to the Corporate Woods Portfolio Whole Loan, the CGCMT 2017-P8 Pooling and Servicing Agreement, (iv) with respect to the Integrated Health Campus Whole Loan, the COMM 2017-COR2 Pooling and Servicing Agreement, (v) with respect to the Colorado Center Whole Loan, the BXP 2017-CC Trust and Servicing Agreement, (vi) with respect to the Gurnee Mills Whole Loan, the CSAIL 2016-C7 Pooling and Servicing Agreement and (vii) with respect to the Cleveland East Whole Loan, the WFCM 2017-C39 Pooling and Servicing Agreement and (B) in the case of any Serviced Companion Loan, the applicable servicing agreement governing the servicing of such Serviced Companion Loan as set forth in the table below under “Related Other Securitization(s)”.

 

Other Securitization”: Any commercial mortgage securitization trust that holds a Serviced Companion Loan or Non-Serviced Companion Loan or any successor REO Loan with respect thereto. The initial Other Securitizations related to the Trust as of the Closing Date are as follows:

 

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Whole Loan Promissory note(s) evidencing
the related Companion Loan(s)
Related Other Securitization(s)
Headquarters Plaza A-2, A-3, A-4 (1)
U-Haul SAC Portfolios 14, 15, 17 A-1, A-2 JPMDB 2017-C7
Burbank Office Portfolio A-1-S, A-1-C1, A-2-S, A-2-C1-B, B-1, B-2 DBUBS 2017-BRBK
A-2-C1-A, A-2-C2-C UBS 2017-C5
A-2-C2-A, A-2-C2-B (1)
IRG Portfolio A-1 JPMDB 2017-C7
Station Place III A-1 JPMDB 2017-C7
A-2, A-3 (1)
A-4 CGCMT 2017-C4
Moffett Place Building 4 A-1, A-2 JPMDB 2017-C7
A-4 BANK 2017-BNK7
Lightstone Portfolio A-2 JPMDB 2017-C7
Corporate Woods Portfolio A-1-A, A-3 CGCMT 2017-P8
A-2 CGCMT 2017-C4
A-4 BANK 2017-BNK7
A-5 MSBAM 2017-C34
Integrated Health Campus A-1 COMM 2017-COR2
Colorado Center A-1-S, A-2-S, A-3-S, B-1-S, B-2-S, B-3-S BXP 2017-CC
A-1-C1, A-3-C1 BANK 2017-BNK8
A-1-C2, A-3-C2 (1)
A-2-C1, A-2-C2-1 COMM 2017-COR2
Gurnee Mills A-1A CSAIL 2017-C7
A-1B, A-3A CSMC 2016-NXSR
A-2A WFCM 2016-C36
A-2B WFCM 2016-LC25
A-4A CD 2017-CD5
Cleveland East A-1 WFCM 2017-C39

 

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Arizona Retail Portfolio B (1)
Covance Business Center A-1 JPMDB 2017-C7

 

(1)       As of the Closing Date, the promissory note evidencing the related Companion Loan is not included in a securitization trust. However, such Companion Loan may be included in a future securitization. Such future securitization shall also be an Other Securitization.

 

Other Servicer”: The applicable other “master servicer” under an Other Pooling and Servicing Agreement relating to a Serviced Companion Loan or a Non-Serviced Companion Loan, as applicable.

 

Other Special Servicer”: The applicable other “special servicer” under an Other Pooling and Servicing Agreement relating to a Serviced Companion Loan or a Non-Serviced Companion Loan, as applicable.

 

Other Trustee”: The applicable other “trustee” or, if applicable, the other “certificate administrator” or, if applicable, the other “custodian” under an Other Pooling and Servicing Agreement relating to a Serviced Companion Loan or a Non-Serviced Companion Loan, as applicable.

 

Ownership Interest”: Any record or beneficial interest in a Class R Certificate.

 

P&I Advance”: As to any Mortgage Loan, any advance made by the Master Servicer or the Trustee pursuant to Section 4.07 of this Agreement. Each reference to the payment or reimbursement of a P&I Advance shall be deemed to include, whether or not specifically referred to and without duplication, payment or reimbursement of interest thereon at the Reimbursement Rate. Neither the Master Servicer nor the Trustee will be required to make P&I Advances with respect to any delinquent payment amounts due on any Companion Loan.

 

P&I Advance Determination Date”: With respect to any Distribution Date, the second Business Day prior to such Distribution Date.

 

Pass-Through Rate”: With respect to each Class of Regular Certificates set forth below, the following rates:

 

Class

Pass-Through Rate

Class A-1 Class A-1 Pass-Through Rate
Class A-2 Class A-2 Pass-Through Rate
Class A-3 Class A-3 Pass-Through Rate
Class A-SB Class A-SB Pass-Through Rate
Class A-4 Class A-4 Pass-Through Rate
Class A-5 Class A-5 Pass-Through Rate
Class X-A Class X-A Pass-Through Rate
Class X-B Class X-B Pass-Through Rate

 

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Class

Pass-Through Rate

Class X-D Class X-D Pass-Through Rate
Class A-M Class A-M Pass-Through Rate
Class B Class B Pass-Through Rate
Class C Class C Pass-Through Rate
Class D Class D Pass-Through Rate
Class E-RR Class E-RR Pass-Through Rate
Class F-RR Class F-RR Pass-Through Rate
Class G-RR Class G-RR Pass-Through Rate
Class H-RR Class H-RR Pass-Through Rate

 

Paying Agent”: The paying agent appointed pursuant to Section 5.04 of this Agreement.

 

PCAOB”: The Public Company Accounting Oversight Board.

 

Penalty Charges”: With respect to any Mortgage Loan or Serviced Companion Loan (or successor REO Loan), any amounts collected thereon from the Borrower that represent default charges, penalty charges, late fees and/or Default Interest, and excluding any Yield Maintenance Charge and any Excess Interest.

 

Percentage Interest”: As to any Certificate (except the Class R and Class S Certificates), the percentage interest evidenced thereby in distributions required to be made with respect to the related Class. With respect to any Certificate (except the Class R and Class S Certificates), the percentage interest is equal to the initial denomination of such Certificate divided by the initial Certificate Balance or Notional Amount, as applicable, of such Class of Certificates. With respect to the Class R and Class S Certificates, the percentage interest is set forth on the face thereof.

 

Performance Certification”: As defined in Section 10.08 of this Agreement.

 

Performing Loan”: A Mortgage Loan or Serviced Whole Loan that is not a Specially Serviced Loan or REO Loan.

 

Performing Party”: As defined in Section 10.14 of this Agreement.

 

Periodic Payment”: With respect to any Mortgage Loan or Serviced Companion Loan (other than any REO Loan) and any Due Date, the scheduled monthly payment of principal, if any, and interest at the Mortgage Rate, excluding any Balloon Payment (but not excluding any constant Periodic Payment due on a Balloon Loan), which is payable by the related Borrower on such Due Date under the related Mortgage Note. The Periodic Payment with respect to an REO Loan is the monthly payment that would otherwise have been payable on the related Due Date had the related Mortgage Note not been discharged, determined as set forth in the preceding sentence and on the assumption that all other amounts, if any, due thereunder are paid when due.

 

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Permitted Investments”: Any one or more of the following obligations or securities payable on demand or having a scheduled maturity on or before the Business Day preceding the date upon which such funds are required to be drawn, regardless of whether issued by the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee or any of their respective Affiliates and having at all times the required ratings, if any, provided for in this definition, unless each Rating Agency shall have provided a Rating Agency Confirmation relating to the Certificates and Serviced Companion Loan Securities:

 

(A)     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 Fannie Mae or Freddie Mac 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 outstanding any class of Serviced Companion Loan Securities that are then rated by such Rating Agency, such class of securities) as evidenced in writing;

 

(B)     repurchase agreements or obligations specified in clause (A) of this definition, with a party agreeing to repurchase such obligations (a)(1) in the case of such investments with maturities of thirty (30) days or less, the short-term obligations of which are rated at least “F1” by Fitch and in the highest short-term rating category by Moody’s or the long-term obligations of which are rated at least “A” by Fitch and “A2” by Moody’s, (2) in the case of such investments with maturities of three (3) months or less, but more than thirty (30) days, the short-term obligations of which are rated at least “F1+” by Fitch and in the highest short-term rating category by Moody’s or the long-term obligations of which are rated at least “AA-” by Fitch and “A2” by Moody’s, (3) in the case of such investments with maturities of six (6) months or less, but more than three (3) months, the short-term obligations of which are rated at least “F1+” by Fitch and in the highest short-term rating category by Moody’s and the long-term obligations of which are rated at least “AA-” by Fitch, and “Aa3” by Moody’s, and (4) in the case of such investments with maturities of more than six (6) months, the short-term obligations of which are rated at least “F1+” by Fitch and in the highest short-term rating category by Moody’s and the long-term obligations of which are rated “AA-” by Fitch and “Aaa” by Moody’s, and (b) the short-term obligations of the applicable repurchase agreement counterparty are rated in the highest short-term debt rating category of DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)) and, if it has a term in excess of six months, the long-term debt obligations of which are rated “AAA” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may

 

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include Moody’s and Fitch)) (or, in the case of any such Rating Agency as set forth in subclauses (a) – (b) above, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency relating to the Certificates and any Companion Loan Securities);

 

(C)     federal funds, unsecured uncertificated certificates of deposit, time deposits, demand deposits and bankers’ acceptances of any bank or trust company organized under the laws of the United States or any state thereof, (a)(1) in the case of such investments with maturities of thirty (30) days or less, the short-term obligations of which are rated at least “F1” by Fitch and in the highest short-term rating category by Moody’s or the long-term obligations of which are rated at least “A” by Fitch and “A2” by Moody’s, (2) in the case of such investments with maturities of three (3) months or less, but more than thirty (30) days, the short-term obligations of which are rated at least “F1+” by Fitch and in the highest short-term rating category by Moody’s or the long-term obligations of which are rated at least “AA-” by Fitch and “A2” by Moody’s, (3) in the case of such investments with maturities of six (6) months or less, but more than three (3) months, the short-term obligations of which are rated at least “F1+” by Fitch and in the highest short-term rating category by Moody’s and the long-term obligations of which are rated at least “AA-” by Fitch and “Aa3” by Moody’s, and (4) in the case of such investments with maturities of more than six (6) months, the short-term obligations of which are rated at least “F1+” by Fitch and in the highest short-term rating category by Moody’s and the long-term obligations of which are rated “AA-” by Fitch and “Aaa” by Moody’s, and (b) the short-term obligations of which bank or trust company are rated in the highest short-term debt rating category of DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)) and, if it has a term in excess of six months, the long-term debt obligations of which are rated “AAA” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)) (or, in the case of any such Rating Agency as set forth in subclauses (a)(b) above, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency relating to the Certificates and any Companion Loan Securities);

 

(D)     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) (a)(1) in the case of such investments with maturities of thirty (30) days or less, the short-term obligations of which corporation are rated at least in the highest short-term debt rating category of Moody’s and “F1” by Fitch or the long-term obligations of which corporation are rated at least “A2” by Moody’s and “A” by Fitch, (2) in the case of such investments with maturities of three (3) months or less, but more than

 

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thirty (30) days, the short-term obligations of which are rated at least in the highest short-term debt rating category of Moody’s and “F1+” by Fitch, or the long-term obligations of which are rated at least “AA-” by Fitch (with a short-term rating of “F1” by Fitch) and “A2” by Moody’s, (3)(A) in the case of such investments with maturities of six (6) months or less, but more than three (3) months, the short-term obligations of which are rated at least “P1” by Moody’s, and the long-term obligations of which corporation are rated at least “Aa3” by Moody’s and (B) in the case of such investments with maturities of six (6) months or less, but more than three (3) months, the short-term obligations of which are rated at least “F1+” by Fitch, or the long-term obligations of which corporation are rated at least “AA-” by Fitch (with a short-term rating of “F1” by Fitch), and (4)(A) in the case of such investments with maturities of more than six (6) months, the short-term obligations of which are rated at least “P1” by Moody’s, and the long-term obligations of which are rated at least “Aaa” by Moody’s, and (B) in the case of such investments with maturities of more than six (6) months, 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 (with a short-term rating of “F1” by Fitch), and (b) the short-term obligations of which corporation are rated in the highest short-term debt rating category of DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)) and, if it has a term in excess of six months, the long-term debt obligations of which are rated “AAA” (or the equivalent) by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)) (or, in the case of any such Rating Agency as set forth in subclauses (a)(b) above, 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);

 

(E)        (1) units of taxable money market mutual funds, issued by regulated investment companies, which seek to maintain a constant net asset value per share (including the Federated Prime Obligation Money Market Fund, US Bank Long Term Eurodollar Sweep or the Wells Fargo Money Market Funds) so long as any such fund is rated “Aaa-mf” by Moody’s and in the highest short-term unsecured debt ratings category by each of Fitch and DBRS (or, if not rated by DBRS, an equivalent rating (or higher) by at least two (2) NRSROs (which may include any of the 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, or (2) units of money market funds that (a) have substantially all of its assets invested continuously in the types of investments referred to in clause (A) above, (b) has net assets of not less than $5,000,000,000, and (c) has a rating of “Aaa-mf” by Moody’s and has the highest rating obtainable for money market funds from each of Fitch and DBRS (or, if not rated by DBRS, an equivalent rating (or higher) by at least two (2) NRSROs (which may include any of the Rating Agencies) or

 

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otherwise acceptable to such Rating Agency, in any such case, as confirmed in a Rating Agency Confirmation);

 

(F)      an obligation or security 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 (B) – (E) above, and is the subject of a Rating Agency Confirmation relating to the Certificates and any Serviced Companion Loan Securities from each Rating Agency for which the minimum rating(s) set forth in the applicable clause is not satisfied with respect to such obligation or security; or

 

(G)     any other obligation or security other than one listed in clauses (A) – (E) above, that is the subject of a Rating Agency Confirmation relating to the Certificates and any Serviced Companion Loan Securities from each and every Rating Agency;

 

provided, that each investment described hereunder shall not (A) evidence either the right to receive (1) only interest with respect to such investment or (2) a yield to maturity greater than 120% of the yield to maturity at par of the underlying obligations, (B) be purchased at a price greater than par, (C) be sold prior to stated maturity if such sale would result in a loss of principal on the instrument or a tax on “prohibited transactions” under Section 860F of the Code or (D) have an “r” highlighter or other comparable qualifier attached to its rating; and provided, further, that each investment described hereunder must have (X) a predetermined fixed amount of principal due at maturity (that cannot vary or change), (Y) an original maturity of not more than 365 days and a remaining maturity of not more than thirty (30) days and (Z) except in the case of a Permitted Investment described in clause (E) of this definition, a fixed interest rate or an interest rate that is tied to a single interest rate index plus a single fixed spread and moves proportionately with that index; and provided, further, that each investment described hereunder must be a “cash flow investment” (within the meaning of the REMIC Provisions).

 

Permitted Special Servicer/Affiliate Fees”: Any commercially reasonable treasury management fees, banking fees, customary title agent fees and insurance commissions or 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, Serviced Whole Loan or REO Property, in each case, in accordance with Article III of this Agreement.

 

Permitted Transferee”: With respect to a Class R Certificate, any Person or agent thereof that is a Qualified Institutional Buyer, 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. Person, (d) a Plan or any Person investing the assets of a Plan, (e) an entity treated as a domestic partnership for U.S. federal income tax purposes, one or more of the direct or indirect beneficial owners (other than through a U.S. corporation) of which is (or is permitted under the applicable partnership

 

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agreement to be) a Disqualified Non-U.S. Person or (f) a U.S. Person with respect to whom income on the Class R Certificate is attributable to a fixed base or foreign permanent establishment, within the meaning of an applicable income tax treaty, of such transferee or any other U.S. Person.

 

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

 

Plan”: As defined in Section 5.02(k) of this Agreement.

 

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

 

Prepayment Assumption”: The assumption that (i) each Mortgage Loan (other than an ARD Loan) does not prepay prior to its respective Maturity Date and (ii) each ARD Loan prepays on its Anticipated Repayment Date.

 

Prepayment Interest Excess”: With respect to any Distribution Date, the aggregate amount, with respect to all Mortgage Loans or Serviced Companion Loans serviced by the Master Servicer that were subject to Principal Prepayment in full or in part, or as to which Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds, as applicable, were received by the Master Servicer or Special Servicer for application to such Mortgage Loans or Serviced Companion Loans, in each case after the Due Date in the month of such Distribution Date and on or prior to the related Determination Date, the amount of interest accrued at the Mortgage Rate for such Mortgage Loans or Serviced Companion Loans on the amount of such Principal Prepayments, Insurance Proceeds, Liquidation Proceeds and Condemnation Proceeds after the Due Date relating to such Collection Period and accruing in the manner set forth in the related Loan Documents, to the extent such interest is collected by the Master Servicer or the Special Servicer (without regard to any Prepayment Premium, Yield Maintenance Charge or Excess Interest actually collected).

 

Prepayment Interest Shortfall”: With respect to any Distribution Date, for each Mortgage Loan or Serviced Companion Loan serviced by the Master Servicer that was subject to a Principal Prepayment in full or in part and which did not include a full month’s interest, or as to which Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds, as applicable, were received by the Master Servicer or Special Servicer for application to such Mortgage Loan or Serviced Companion Loan, in each case after the Determination Date in the calendar month preceding such Distribution Date but prior to the Due Date in the related Collection Period, the amount of interest that would have accrued at the Net Mortgage Rate for such Mortgage Loan or Serviced Companion Loan on the amount of such Principal Prepayment, Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds during the period commencing on the date as of which such Principal Prepayment, Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds, as applicable, were applied to the unpaid principal balance of the Mortgage Loan or Serviced Companion Loan and ending on (and including) the day immediately preceding such

 

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Due Date (without regard to any Prepayment Premium, Yield Maintenance Charge or Excess Interest actually collected).

 

Prepayment Premium”: Any premium, fee or other additional amount (other than a Yield Maintenance Charge) paid or payable on a Mortgage Loan or Serviced Companion Loan by a Borrower as the result of a Principal Prepayment thereon, not otherwise due thereon, in respect of principal or interest, which is intended to compensate the holder of the related Mortgage Note for prepayment.

 

Pricing Date”: November 13, 2017.

 

Primary Servicing Fee Rate”: With respect to each Serviced Mortgage Loan (other than any Servicing Shift Mortgage Loan), the rate per annum set forth on Exhibit B to this Agreement. With respect to a Servicing Shift Mortgage Loan, prior to the related Servicing Shift Securitization Date, the applicable rate per annum set forth on Exhibit B to this Agreement. With respect to Non-Serviced Mortgage Loans, except as provided for on Exhibit B to this Agreement, no Primary Servicing Fee Rate will be charged by the Master Servicer, but the Non-Serviced Mortgage Loan Primary Servicing Fee Rate is charged by the applicable Other Servicer pursuant to the related Other Pooling and Servicing Agreement. For the avoidance of doubt, the Primary Servicing Fee Rate includes any fee rate payable to a Mortgage Loan Seller Sub-Servicer.

 

Prime Rate”: The “Prime Rate” as published in the “Money Rates” section of The Wall Street Journal, Eastern edition (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. The Certificate Administrator shall notify in writing the Master Servicer and the Special Servicer with regard to any determination of the Prime Rate in accordance with the parenthetical in the preceding sentence.

 

Principal Balance Certificates”: The Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class A-5, Class A-M, Class B, Class C, Class D, Class E-RR, Class F-RR, Class G-RR and Class H-RR Certificates.

 

Principal Distribution Amount”: For any Distribution Date and the Principal Balance Certificates, the sum of (i) the Aggregate Principal Distribution Amount for such Distribution Date and (ii) the Principal Shortfall, if any, for the prior Distribution Date.

 

Principal Prepayment”: Any payment of principal made by a Borrower on a Mortgage Loan or Serviced Companion Loan which is received in advance of its scheduled due date and which is not accompanied by an amount of interest representing the full amount of scheduled interest due on any date or dates in any month or months subsequent to the month of prepayment.

 

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Principal Shortfall”: For any Distribution Date, the amount, if any, by which (i) the Principal Distribution Amount for the preceding Distribution Date exceeds (ii) the aggregate amount actually distributed on such preceding Distribution Date to holders of the Principal Balance Certificates in respect of such Principal Distribution Amount.

 

PrinREI Serviced Mortgage Loans”: Each of the Port Gardner Building, 19500 South Dixie Highway and Bennetts Creek Crossing Mortgage Loans so long as such Mortgage Loan is being primary serviced by Principal Real Estate Investors, LLC.

 

Private Certificate”: Each of the Class X-B, Class X-D, Class D, Class E-RR, Class F-RR, Class G-RR, Class H-RR, Class S and Class R Certificates, collectively.

 

Private Global Certificate”: Each of the Regulation S Global Certificates or Rule 144A Global Certificates with respect to the Private Certificates if and so long as such class of Certificates is registered in the name of a nominee of the Depository.

 

Private Placement Memorandum”: Means the Private Placement Memorandum, dated November 17, 2017, pursuant to which the Private Certificates will be offered for sale.

 

Privileged Information”: Any (i) correspondence or other communications between a Directing Holder and the Special Servicer related to any Specially Serviced Loan (other than any applicable Conflicted Loan) or the exercise of the consent or consultation rights of a Directing Holder under this Agreement or any related Intercreditor Agreement, (ii) strategically sensitive information that the Special Servicer has reasonably determined could compromise the Trust Fund’s position in any ongoing or future negotiations with the related Borrower or other interested party, (iii) information subject to attorney-client privilege and (iv) any Asset Status Report or Final Asset Status Report.

 

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, 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.

 

Privileged Person”: The Depositor and its designees, the Initial Purchasers, the Underwriters, the Mortgage Loan Sellers, the Master Servicer, the Special Servicer (including, for the avoidance of doubt, any Non-Conflicted Special Servicer), the Trustee, the Certificate Administrator, any Additional Servicer designated by the Master Servicer or the Special Servicer, the Directing Holder (but only prior to the occurrence of a Consultation Termination Event), the Operating Advisor, any Affiliate of the Operating Advisor designated by the Operating Advisor, the Asset Representations Reviewer, any Serviced Companion Loan

 

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Noteholder who provides a certification substantially in the form of Exhibit FF hereto, any Person who provides the Certificate Administrator with an Investor Certification and any NRSRO (including any Rating Agency) that provides the Certificate Administrator with a NRSRO Certification, which Investor Certification and NRSRO Certification may be submitted electronically via the Certificate Administrator’s Website; provided, however, that in no event may a Borrower Party (other than a Borrower Party that is the Special Servicer) be entitled to receive (i) if such party is the Directing Holder or any Controlling Class Certificateholder, any Conflicted 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 Conflicted Controlling Class Loan(s)), and (ii) if such party is not the Directing Holder or any Controlling Class Certificateholder, any information other than the Distribution Date Statement.

 

Notwithstanding anything to the contrary in this Agreement, if the Special Servicer obtains knowledge that it is a Borrower Party, the Special Servicer shall nevertheless be a Privileged Person; provided that the Special Servicer (i) shall not directly or indirectly provide any information solely related to the related Conflicted Special Servicer Mortgage Loan (which may include any Asset Status Reports, Final Asset Status Reports (or summaries thereof)) to (A) the related Borrower Party, (B) 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 (C) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, 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; 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 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 of the items listed in the definition of Conflicted Information relating to the Conflicted Special Servicer Mortgage Loans.

 

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

 

Property Protection Expenses”: With respect to any Serviced Mortgage Loan and any related Serviced Companion Loan, any costs and expenses incurred by the Master Servicer or the Special Servicer pursuant to Section 3.04, Section 3.08(a), Section 3.10, Section 3.11, Section 3.15(a), Section 3.15(b), Section 3.15(c), Section 3.16(c) or Section 3.24(a) of this Agreement or indicated herein as being payable as a Servicing Advance or as a cost or expense of the Trust Fund (and, in the case of the Serviced Whole Loans, the Serviced Companion Loan Noteholders but subject to the provisions of Section 1.02(e)) or the Lower-Tier REMIC or Upper-Tier REMIC to be paid out of the Collection Account.

 

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

 

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Prospectus”: The Depositor’s Prospectus dated November 17, 2017, relating to the offering of the Public Certificates.

 

PTCE”: Prohibited Transaction Class Exemption.

 

Public Certificates”: Each of the Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class A-5, Class X-A, Class A-M, Class B and Class C Certificates.

 

Public Global Certificates”: Each of the Public Certificates, if and so long as the applicable Class of Public Certificates is registered in the name of the Depository.

 

Purchase Price”: With respect to (i) any Mortgage Loan to be repurchased or purchased pursuant to Section 2.03(e) or Section 9.01 of this Agreement, (ii) any Specially Serviced Loan or any Serviced REO Loan to be sold pursuant to Section 3.16 of this Agreement or (iii) any Defaulted Loan that is a Non-Serviced Mortgage Loan to be sold by the Special Servicer in accordance with the proviso in Section 3.16(b) of this Agreement, an amount, calculated by the Master Servicer (with respect to Performing Loans) or the Special Servicer (with respect to Specially Serviced Loans or Serviced REO Loans), as applicable, equal to:

 

(a)               the outstanding principal balance of such Mortgage Loan (or related REO Loan) as of the date of purchase; plus

 

(b)               all accrued and unpaid interest on such Mortgage Loan (or any related REO Loan) at the related Mortgage Rate in effect from time to time to but not including the Due Date immediately preceding or coinciding with the Determination Date for the Collection Period of purchase, but excluding any Default Interest or Excess Interest; plus

 

(c)               all related unreimbursed Servicing Advances plus accrued and unpaid interest on related Advances at the Reimbursement Rate, and all Special Servicing Fees and Workout Fees allocable to such Mortgage Loan (and, in the case of a Non-Serviced Mortgage Loan, unpaid fees payable to the applicable servicer, Other Servicer, the Other Special Servicer or the Other Trustee allocable to such Mortgage Loan); plus

 

(d)               any Liquidation Fee due pursuant to Section 3.12 of this Agreement allocable to such Mortgage Loan or Specially Serviced Loan; plus

 

(e)               all Additional Trust Fund Expenses allocable to such Mortgage Loan; plus

 

(f)                if such Mortgage Loan (or related REO Loan) is being purchased or substituted by a Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement, to the extent not otherwise included in the amount described in clause (c) of this definition, any unpaid Asset Representations Reviewer Asset Review Fee related to such Mortgage Loan and all reasonable out-of-pocket expenses reasonably incurred or to be incurred by the Master Servicer, the Special Servicer, the Depositor, the Certificate Administrator and the Trustee in respect of the Breach or Defect giving rise to the repurchase obligation, including any such expenses arising out of the enforcement of the

 

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repurchase obligation, including, without duplication, any such expenses previously reimbursed from the Collection Account or the applicable Serviced Whole Loan Collection Account, as applicable, plus accrued and unpaid interest thereon at the Reimbursement Rate, to the extent payable to the Master Servicer, the Special Servicer, the Certificate Administrator, the Asset Representations Reviewer or the Trustee; 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 or in exercising such Certificateholder’s or Certificate Owner’s, as applicable, rights under the dispute resolution mechanics pursuant to Section 2.03(k) hereof.

 

For purposes of this Agreement, (i) the “Purchase Price” in respect of a Serviced Companion Loan that is purchased by the related Mortgage Loan Seller shall be the purchase price paid by the related Mortgage Loan Seller under the related Other Pooling and Servicing Agreement or the applicable servicing agreement, and (ii) with respect to a sale of an REO Property securing a Serviced Whole Loan, the term Mortgage Loan or REO Loan shall be construed to include any related Companion Loans.

 

Qualified Affiliate”: Any Person (a) that is organized and doing business under the laws of any state of the United States or the District of Columbia, (b) that is in the business of performing the duties of a servicer of mortgage loans (or, in the case of the Operating Advisor, that is in the business of performing the duties of an operating advisor), and (c) as to which 50% or greater of its outstanding voting stock or equity ownership interest are directly or indirectly owned by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, or by any Person or Persons who directly or indirectly own equity ownership interests in the Master Servicer, the Special Servicer or the Operating Advisor, as applicable.

 

Qualified Institutional Buyer”: A “qualified institutional buyer” within the meaning of Rule 144A.

 

Qualified Insurer”: As used in Section 3.08 of this Agreement,

 

(i) in the case of each Mortgage Loan or Serviced Pari Passu Whole Loan, an insurance company or security or bonding company qualified to write the related insurance policy in the relevant jurisdiction and whose claims paying ability is rated (a) at least “A (low)” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by at least two NRSROs (which may include S&P, Fitch and/or Moody’s) or one NRSRO (which may include S&P, Fitch and/or Moody’s) and A.M. Best), (b) at least “A3” by Moody’s (or, if not rated by Moody’s, an equivalent rating by (x) at least two NRSROs (which may include S&P, DBRS and/or Fitch) or (y) one NRSRO (which may include S&P, DBRS and/or Fitch) and A.M. Best), and (c) at least “A” by Fitch (or, if not rated by Fitch, at least “A-” or an equivalent (or higher) rating by (x) at least two NRSROs (which may include S&P, DBRS and/or Moody’s) or (y) one NRSRO (which may include S&P, DBRS and/or Moody’s) and AM Best), and

 

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(ii) in the case of the fidelity bond and the errors and omissions insurance required to be maintained pursuant to Section 3.08(d) of this Agreement, a company that shall have a claims paying ability rated at least equal to any one of the following: (1) “A-” or better by S&P, (2) “A3” or better by Moody’s, (3) “A-” or better by Fitch, (4) “A (low)” or better by DBRS or (5) “A-:X” or better by A.M. Best,

 

or, in the case of clauses (i) and (ii), such other rating as to which the related Rating Agency (and, if applicable, the related Serviced Companion Rating Agency) has provided a Rating Agency Confirmation relating to the Certificates and any Serviced Companion Loan Securities (subject to the foregoing exceptions).

 

Qualified Mortgage”: A Mortgage Loan that is a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a defective obligation as a qualified mortgage), or any substantially similar successor provision.

 

Qualified Replacement Special Servicer”: A replacement special servicer that (i) satisfies all of the eligibility requirements applicable to special servicers 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, or (y) for the appointment of the successor special servicer or the recommendation by the Operating Advisor for the replacement special servicer to become the 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 expressly approved by 100% of the Certificateholders, (vi)(A) has been appointed as a special servicer on a transaction-level basis on the closing date of a commercial mortgage-backed securities transaction and, as of the date of such determination, is the special servicer of such securitization, with respect to which Moody’s rated one or more classes of certificates and one or more classes of such certificates are still outstanding and rated by Moody’s and (B) is not a special servicer that has been cited by Moody’s as having servicing concerns as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by the applicable servicer prior to the time of determination, (vii) currently has a special servicer rating of at least “CSS3” from Fitch, and (viii) is currently acting as a special servicer in a transaction rated by DBRS and has not been cited by DBRS as having servicing concerns as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by the applicable servicer prior to the time of determination.

 

Qualified Substitute Mortgage Loan”: A substitute mortgage loan (other than with respect to the Whole Loans, for which no substitution shall be permitted) replacing a

 

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Mortgage Loan with respect to which a Material Breach or Material Defect exists that must, on the date of substitution: (i) have an outstanding Stated Principal Balance, after application of all scheduled payments of principal and/or 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 fixed 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 and a 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 and the actual number of days elapsed); (v) have a remaining term to stated maturity not greater than, and not more than five 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 (x) the loan to value ratio for the Removed Mortgage Loan as of the Closing Date and (y) 75%, in each case using the “value” for the Mortgaged Property as determined using an Appraisal prepared in accordance with the requirements of the FIRREA; (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 that will be delivered as a part of the related Servicing File; (ix) have a then-current Debt Service Coverage Ratio at least equal to the greater of (i) the original Debt Service Coverage Ratio of the Removed Mortgage Loan as of the Closing Date and (ii) 1.25x; (x) be determined by an Opinion of Counsel (at the applicable Mortgage Loan Seller’s expense) to be a “qualified replacement mortgage” within the meaning of Section 860G(a)(4) of the Code; (xi) not have a maturity date or an amortization period that extends to a date that is after the date that is two years prior to the Rated Final Distribution Date; (xii) have comparable prepayment restrictions to those of the Replaced Mortgage Loan; (xiii) not be substituted for a Removed Mortgage Loan unless the Certificate Administrator and the Trustee have received a Rating Agency Confirmation from each of the Rating Agencies (the cost, if any, of obtaining such Rating Agency Confirmation to be paid by the applicable Mortgage Loan Seller; (xiv) have been approved, (A) so long as no Control Termination Event has occurred and is not continuing, by the Directing Holder, and (B) during any such time that the Master Servicer is the Enforcing Servicer, by the Special Servicer; (xv) prohibit defeasance within two years after the Closing Date; (xvi) not be substituted for a Removed Mortgage Loan if it would result in the termination of the REMIC status of any Trust REMIC or the imposition of tax on any Trust REMIC other than a tax on income expressly permitted or contemplated to be received by the terms of this Agreement, as determined by an Opinion of Counsel (at the cost of the applicable 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. In the event that one or more mortgage loans are substituted for one or more Removed Mortgage Loans, 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 must individually satisfy each of the requirements specified in clauses (ii)

 

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through (xviii) above, except the rates referred to 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 that no individual Mortgage Rate shall be lower than the highest Pass-Through Rate (that is a fixed rate not subject to a cap equal to the WAC Rate) of any Class of Principal Balance Certificates having an outstanding Certificate Balance. When a Qualified Substitute Mortgage Loan is substituted for a Removed Mortgage Loan, the applicable Mortgage Loan Seller shall certify that the Mortgage Loan meets all of the requirements of the above definition and shall send such certification to the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer, the Trustee and, for so long as no Consultation Termination Event has occurred and is continuing, the Directing Holder.

 

RAC No-Response Scenario”: As defined in Section 3.30(a).

 

Rated Final Distribution Date”: The Distribution Date in November 2050. The Class H-RR, Class S and Class R Certificates will not have a Rated Final Distribution Date.

 

Rating Agency”: Any of Moody’s, Fitch or DBRS; provided, that with respect to any matter affecting a Non-Serviced Mortgage Loan or any Serviced Whole Loan, “Rating Agency” shall also refer to any rating agency engaged to rate the Serviced Companion Loan Securities related to such Serviced Whole Loan or securities related to such Non-Serviced Mortgage Loan, as applicable.

 

Rating Agency Confirmation” shall mean, 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 any 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 such Rating Agency with respect to such matter. At any time during which no Certificates are rated by a Rating Agency, no Rating Agency Confirmation shall be required from that Rating Agency. With respect to any matter affecting any Serviced Pari Passu Companion Loan, any Rating Agency Confirmation shall also refer to a comparable confirmation from the nationally recognized statistical rating organizations then rating the securities representing an interest in such loan with respect to such rating organizations’ respective ratings of such securities.

 

Rating Agency Q&A Forum and Document Request Tool”: As defined in Section 3.14(d) of this Agreement.

 

Real Property”: Land or improvements thereon such as buildings or other inherently permanent structures thereon (including items that are structural components of the buildings or structures), in each such case as such terms are used in the REMIC Provisions.

 

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Realized Loss”: With respect to any Distribution Date, the amount, if any, by which (i) the aggregate Stated Principal Balance of the Mortgage Loans in the Mortgage Pool (for purposes of this calculation only, the aggregate Stated Principal Balance will not be reduced by the amount of principal payments received on the Mortgage Loans that were used to reimburse the Master Servicer or the Trustee from general collections of principal on the Mortgage Loans for Workout-Delayed Reimbursement Amounts, to the extent those amounts are not otherwise determined to be Nonrecoverable Advances), including any REO Loans (but in each case, excluding any Companion Loan) expected to be outstanding immediately following such Distribution Date is less than (ii) the then aggregate Certificate Balance of all Classes of Principal Balance Certificates, after giving effect to distributions of principal on such Distribution Date.

 

Reassignment of Assignment of Leases, Rents and Profits”: As defined in Section 2.01(a)(viii) of this Agreement.

 

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

 

Regular Certificates”: The Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class A-5, Class X-A, Class X-B, Class X-D, Class A-M, Class B, Class C, Class D, Class E-RR, Class F-RR, Class G-RR and Class H-RR Certificates.

 

Regulation AB”: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such rules 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, in each case as effective from time to time as of the compliance dates specified therein.

 

Regulation D”: Regulation D under the Act.

 

Regulation RR”: The final rule (appearing at 17 CFR § 246.1, et seq.) that was promulgated to implement the credit risk retention requirements under Section 15G of the Securities Exchange Act of 1934, as added by Section 941 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (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 Regulatory Agencies in the adopting release (79 FR 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.

 

Regulation RR Other PSA”: As defined in Section 3.27(i) of this Agreement.

 

Regulation S”: Regulation S under the Act.

 

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Regulation S Global Certificate”: Each of the Class X-B, Class X-D, Class D, Class E-RR, Class F-RR, Class G-RR and Class H-RR Certificates issued as such on the Closing Date.

 

Regulation S Investor”: With respect to a transferee of an interest in a Regulation S Global Certificate, a transferee that acquires such interest pursuant to Regulation S.

 

Regulation S Transfer Certificate”: As defined in Section 5.02(c)(i)(B) of this Agreement.

 

Regulatory Agencies”: The Office of the Comptroller of the Currency; the Board of Governors of the Federal Reserve System; the Federal Deposit Insurance Corporation; the Federal Housing Finance Agency; the Securities and Exchange Commission; and the Department of Housing and Urban Development.

 

Reimbursement Rate”: The rate per annum applicable to the accrual of interest on Servicing Advances in accordance with Section 3.21(e) and P&I Advances in accordance with Section 4.07(h), which rate per annum shall equal the Prime Rate. Interest at the Reimbursement Rate will accrue from (and including) the date on which the related Advance is made or the related expense incurred to (but excluding) the date on which such amounts are recovered out of amounts received on the Mortgage Loan as to which such Advances were made or servicing expenses incurred or the first Master Servicer Remittance Date after a determination of non-recoverability, as the case may be, is made; provided that such interest at the Reimbursement Rate will continue to accrue to the extent funds are not available in the Collection Accounts for such reimbursement of such Advance; provided, further, that no interest will accrue on any P&I Advance (i) made with respect to a Mortgage Loan until after the related Due Date has passed and any applicable Grace Period has expired or (ii) if the related Periodic Payment is received after the Determination Date but on or prior to the Business Day immediately prior to the related Distribution Date.

 

Relevant Distribution Date”: 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 each Reporting Servicer (as set forth, with respect to the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee on Schedule II to this Agreement). For clarification purposes, multiple Reporting Servicers can have responsibility for the same Relevant Servicing Criteria and some of the Servicing Criteria will not be applicable to certain Reporting Servicers. With respect to a Servicing Function Participant engaged by the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, the term “Relevant Servicing Criteria” refers to the items of the Relevant Servicing Criteria applicable to the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee that engaged such Servicing

 

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Function Participant that are applicable to such Servicing Function Participant based on the functions it has been engaged to perform.

 

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

 

REMIC Provisions”: Provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Section 860A through 860G of subchapter M of chapter 1 of the Code, and related provisions, and regulations (including any applicable proposed regulations) and rulings promulgated thereunder, as the foregoing may be in effect from time to time.

 

Removed Mortgage Loan”: A Mortgage Loan which is repurchased from the Trust Fund pursuant to the terms hereof or as to which one or more Qualified Substitute Mortgage Loans are substituted.

 

Rents from Real Property”: With respect to any Serviced REO Property, gross income of the character described in Section 856(d) of the Code, which income, subject to the terms and conditions of that Section of the Code in its present form, does not include:

 

(a)          except as provided in Section 856(d)(4) or Section 856(d)(6) of the Code, any amount received or accrued, directly or indirectly, with respect to such Serviced REO Property, if the determination of such amount depends in whole or in part on the income or profits derived by any Person from such property (unless such amount is a fixed percentage or percentages of receipts or sales and otherwise constitutes Rents from Real Property);

 

(b)         any amount received or accrued, directly or indirectly, from any Person if the Trust Fund owns directly or indirectly (including by attribution) a ten percent or greater interest in such Person determined in accordance with Sections 856(d)(2)(B) and Section 856(d)(5) of the Code;

 

(c)          any amount received or accrued, directly or indirectly, with respect to such Serviced REO Property if any Person Directly Operates such Serviced REO Property;

 

(d)         any amount charged for services that are not customarily furnished in connection with the rental of property to tenants in buildings of a similar class in the same geographic market as such Serviced REO Property within the meaning of Treasury Regulations Section 1.856-4(b)(1) (whether or not such charges are separately stated); and

 

(e)          rent attributable to personal property unless such personal property is leased under, or in connection with, the lease of such Serviced REO Property and, for any taxable year of the Trust Fund, such rent is no greater than 15 percent of the total rent received or accrued under, or in connection with, the lease.

 

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REO Account”: As defined in Section 3.15(b) of this Agreement.

 

REO Loan”: Any Mortgage Loan (excluding any Non-Serviced Mortgage Loan) or Serviced Whole Loan as to which the related Mortgaged Property has become an REO Property.

 

REO Proceeds”: With respect to any Serviced REO Property and the related Serviced REO Loan, all revenues received by the Special Servicer with respect to such Serviced REO Property or Serviced REO Loan which do not constitute Liquidation Proceeds.

 

REO Property”: A Mortgaged Property title to which has been acquired by the Special Servicer on behalf of the Trust Fund through foreclosure, deed-in-lieu of foreclosure or otherwise, or in the case of a Non-Serviced Mortgage Loan, the Trust Fund’s beneficial interest in the Mortgaged Property acquired by the Other Trustee pursuant to the Other Pooling and Servicing Agreement.

 

Replacement Mortgage Loan”: Any Qualified Substitute Mortgage Loan that is substituted for one or more Removed Mortgage Loans.

 

Reporting Servicer”: As defined in Section 10.12 of this Agreement.

 

Repurchase Communication”: For purposes of Section 2.03(d) of this Agreement only, any communication, whether oral or written, which need not be in any specific form.

 

Repurchase”: As defined in Section 2.03(d) of this Agreement.

 

Repurchase Request”: As defined in Section 2.03(d) of this Agreement.

 

Repurchase Request Recipient”: As defined in Section 2.03(d) of this Agreement.

 

Repurchase Request Rejection”: As defined in Section 2.03(d) of this Agreement.

 

Repurchase Request Withdrawal”: As defined in Section 2.03(d) of this Agreement.

 

Request for Release”: A request for a release signed by a Servicing Officer, substantially in the form of Exhibit E to this Agreement.

 

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

 

Requesting Holders”: As defined in Section 4.08(b) of this Agreement.

 

Requesting Investor”: As defined in Section 5.05(a) of this Agreement.

 

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Reserve Accounts”: With respect to any Serviced Mortgage Loan and any related Serviced Companion Loan, reserve accounts, if any, established pursuant to the Mortgage or the Loan Agreement and any Escrow Account. Any Reserve Account may be a sub-account of a related Cash Collateral Account. Any Reserve Account shall be beneficially owned for federal income tax purposes by the Person who is entitled to receive the reinvestment income or gain thereon in accordance with the terms and provisions of the related Mortgage Loan or Serviced Whole Loan and Section 3.07 of this Agreement, which Person shall be taxed on all reinvestment income or gain thereon. The Master Servicer shall be permitted to make withdrawals therefrom for deposit into the related Cash Collateral Account, if applicable, or the Collection Account or for the purposes set forth under the related Loan Documents for the related Mortgage Loan or Serviced Whole Loan.

 

Resolution Extension Period” shall mean:

 

(a)          for purposes of remediating a Material Breach with respect to any Mortgage Loan, the 90-day period following the end of the applicable Initial Resolution Period;

 

(b)          for purposes of remediating a Material Defect with respect to any Mortgage Loan that is a Performing Loan at the commencement of, and does not become a Specially Serviced Loan during, the applicable Initial Resolution Period, the period commencing at the end of the applicable Initial Resolution Period and ending on, and including, the earlier of (i) the 90th day following the end of such Initial Resolution Period and (ii) the 45th day following the applicable Mortgage Loan Seller’s receipt of written notice from the Master Servicer or the Special Servicer of the occurrence of any Servicing Transfer Event with respect to such Mortgage Loan subsequent to the end of such Initial Resolution Period;

 

(c)          for purposes of remediating a Material Defect with respect to any Mortgage Loan that is a Performing Loan as of the commencement of the applicable Initial Resolution Period, but as to which a Servicing Transfer Event occurs during such Initial Resolution Period, the period commencing at the end of the applicable Initial Resolution Period and ending on, and including, the 90th day following the earlier of the end of such Initial Resolution Period and the applicable Mortgage Loan Seller’s receipt of written notice from the Master Servicer or the Special Servicer of the occurrence of such Servicing Transfer Event; and

 

(d)          for purposes of remediating a Material Defect with respect to any Mortgage Loan that is a Specially Serviced Loan as of the commencement of the applicable Initial Resolution Period, zero (-0-) days; provided that, if the applicable Mortgage Loan Seller did not receive written notice from the Master Servicer or the Special Servicer of the relevant Servicing Transfer Event as of the commencement of the applicable Initial Resolution Period, then such Servicing Transfer Event shall be deemed to have occurred during such Initial Resolution Period and clause (c) of this definition will be deemed to apply.

 

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

 

Resolved”: With respect to a Repurchase Request, (i) that the related Defect or Breach 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 made the Loss of Value Payment, (v) a contractually binding agreement 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 the Trustee or the Certificate Administrator, any officer of the Trustee or the Certificate Administrator, as the case may be, assigned to the Corporate Trust Office of such party; in each case, with direct responsibility for the administration of this Agreement and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, and, in the case of any certification required to be signed by a Responsible Officer, such an officer whose name and specimen signature appears on a list of corporate trust officers furnished to the Master Servicer by the Trustee and the Certificate Administrator, as such list may from time to time be amended.

 

Restricted Certificate”: As defined in Section 5.02(k) of this Agreement.

 

Restricted Mezzanine Holder”: A holder of a related mezzanine loan that has been accelerated or as to which the mezzanine lender has initiated foreclosure or enforcement proceedings against the equity collateral pledged to secure such mezzanine loan.

 

Restricted Period”: The 40-day period prescribed by Regulation S commencing on the later of (a) the date upon which the Certificates are first offered to persons other than the Initial Purchasers and any other distributor (as defined in Regulation S) of the Certificates and (b) the Closing Date.

 

Retained Certificate”: Individually and collectively, the RR Certificates.

 

Retained Certificates Safekeeping Account”: An account maintained by the Certificate Administrator, which account shall be established at the direction of the Retaining Sponsor for the benefit of the Holder of the Retained Certificates.

 

Retained Certificate Transfer Restriction Period”: The period from the Closing Date to the earlier 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 Balance of the Mortgage Loans; (ii) the date on which the sum of the total outstanding Certificate Balance of the Principal Balance Certificates has been reduced to 33.0% of the sum of the total outstanding Certificate Balance of the Principal Balance Certificates as of the Closing Date; and (iii) two years after the Closing Date, and (b) such time as when Regulation RR ceases

 

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to require the retention of risk with respect to the securitization of the Mortgage Loans contemplated by this Agreement, resulting from the repeal, amendment or modification of all or any applicable portion of Regulation RR.

 

Retained Defeasance Rights and Obligations”: Any of the rights and obligations of the Mortgage Loan Sellers defined in Section 3.26(i).

 

Retaining Parties”: Any Holder of a Retained Certificate and any successor Holder of such Retained Certificates.

 

Retaining Sponsor”: Argentic, acting as retaining sponsor as such term is defined under Rule 2 of Regulation RR.

 

Revised Rate”: With respect to those Mortgage Loans on the Mortgage Loan Schedule indicated as having a revised rate, the increased interest rate after the 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.

 

Risk Retention Affiliate” or “Risk Retention Affiliated”: An “affiliate of” or “affiliated with”, as such terms are defined in 12 C.F.R. 244.2 of Regulation RR.

 

RR Certificates”: The Class E-RR, Class F-RR, Class G-RR and Class H-RR Certificates, collectively.

 

Rule 144A”: Rule 144A under the Act.

 

Rule 144A Global Certificate”: Each of the Class X-B, Class X-D, Class D, Class E-RR, Class F-RR, Class G-RR and Class H-RR Certificates issued as such on the Closing Date.

 

Rule 15Ga-1 Notice”: As defined in Section 2.03(d) of this Agreement.

 

Rule 15Ga-1 Notice Provider”: As defined in Section 2.03(d) of this Agreement.

 

S&P”: S&P Global Ratings, a Standard & Poor’s Financial Services LLC business, or its successor in interest. If neither such rating agency 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 other parties hereto, 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 10.08 of this Agreement.

 

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Schedule AL Additional File”: With respect to each CREFC® Schedule AL File prepared by the Master Servicer pursuant to Section 3.13(a), any data file containing additional information or schedules regarding data points in such CREFC® Schedule AL File required by Items 1111(h)(4) and/or 1111(h)(5) of Regulation AB and Item 601(b)(103) of Regulation S-K.

 

Scheduled Principal Distribution Amount”: With respect to any Distribution Date and the Mortgage Loans, the aggregate of the principal portions of the following: (a) all Periodic Payments (excluding Balloon Payments) with respect to the Mortgage Loans due during or, if and to the extent not previously received or advanced pursuant to Section 4.07 in respect of a preceding Distribution 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 Borrower as of the Determination 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 Master Servicer Remittance Date) or (ii) advanced by the Master Servicer or the Trustee, as applicable, pursuant to Section 4.07 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, 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 Master Servicer Remittance Date), and to the extent not included in clause (a) above.

 

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

 

Securities Legend”: As defined in Section 5.02(c)(iii) of this Agreement.

 

Serviced Companion Loan”: With respect to any Serviced Whole Loan, any related mortgage loan not included in the Trust that is serviced under this Agreement and that is generally (a) payable on a pari passu basis with the related Mortgage Loan included in the Trust to the extent set forth in the related Intercreditor Agreement or (b) subordinated in right of payment to the related Mortgage Loan included in the Trust to the extent set forth in the related Intercreditor Agreement. The Headquarters Plaza Companion Loans, the Lightstone Portfolio Companion Loan and the Arizona Retail Portfolio Companion Loan are the only Serviced Companion Loans.

 

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

 

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such Serviced Companion Loan Securities (if then rated by such Serviced Companion Loan Rating Agency); provided that upon receipt of a written waiver or other acknowledgment from a Serviced Companion Loan Rating Agency indicating its decision not to review or declining to review the matter for which the Serviced Companion Loan Rating Agency Confirmation is sought (such written notice, a “Serviced Companion Loan Rating Agency Declination”), or as otherwise provided in Section 3.30 of this Agreement, the requirement for the Serviced Companion Loan Rating Agency Confirmation from the applicable Serviced Companion Loan Rating Agency with respect to such matter shall not apply.

 

Serviced Companion Loan Noteholder”: Any holder of a Serviced Companion Loan; provided that for so long as a Serviced Companion Loan is included in an Other Securitization, for purposes of providing or distributing any reports, statements, notices or other information required or permitted to be provided to a Serviced Companion Loan Noteholder hereunder, “Serviced Companion Loan Noteholder” shall also include the related Other Servicer.

 

Serviced Companion Loan Noteholder Register”: As defined in Section 3.27(b) of this Agreement.

 

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

 

Serviced Companion Loan Securities”: With respect to any Serviced Companion Loan so long as the related Mortgage Loan or any successor Serviced REO Loan is part of the Mortgage Pool, any class of securities backed by such Serviced Companion Loan. Any reference herein to a “series” of Serviced Companion Loan Securities shall refer to separate securitizations of one or more of the Serviced Companion Loans.

 

Serviced Companion Loan Service Provider”: With respect to any Serviced Pari Passu Companion Loan that has been deposited into a securitization trust, the related Other Trustee, Other Servicer, Other Special Servicer, any sub-servicer and any other Person that makes principal and/or interest advances in respect of such mortgage loan pursuant to the related Other Pooling and Servicing Agreement.

 

Serviced Mortgage Loan”: Any Mortgage Loan that is included in the Trust and serviced under this Agreement. For the avoidance of doubt, “Serviced Mortgage Loans” exclude any Non-Serviced Mortgage Loan.

 

Serviced Pari Passu Companion Loan”: With respect to any Serviced Whole Loan, any related mortgage note not included in the Trust that is serviced under this Agreement and that is generally payable on a pari passu basis with the related Mortgage Loan included in the Trust to the extent set forth in the related Intercreditor Agreement. The Headquarters Plaza Companion Loans and the Lightstone Portfolio Companion Loan are the only Serviced Pari Passu Companion Loans.

 

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Serviced Pari Passu Companion Loan Noteholder”: Any holder of a Serviced Pari Passu Companion Loan.

 

Serviced Pari Passu Whole Loan”: Any Whole Loan serviced under this Agreement that is divided into one or more notes, which includes a mortgage note that is included in the Trust and one or more pari passu mortgage notes not included in the Trust. References herein to a Serviced Pari Passu Whole Loan shall be construed to refer to the aggregate indebtedness under the related notes. The Headquarters Plaza Whole Loan and the Lightstone Portfolio Whole Loan are the only Serviced Pari Passu Whole Loans.

 

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 Subordinate Companion Loan”: With respect to any Serviced Whole Loan, any related mortgage note not included in the Trust that is serviced under this Agreement and that is generally subordinated in right of payment to the related Mortgage Loan included in the Trust to the extent set forth in the related Intercreditor Agreement. The Arizona Retail Portfolio Subordinate Companion Loan is the only Serviced Subordinate Companion Loan related to the Trust.

 

Serviced Whole Loan”: Any Whole Loan serviced under this Agreement that is divided into one or more notes, which includes a mortgage note that is included in the Trust and (a) one or more Subordinate Companion Loans not included in the Trust and/or (b) one or more pari passu mortgage notes not included in the Trust. References herein to a Serviced Whole Loan shall be construed to refer to the aggregate indebtedness under the related notes. The Headquarters Plaza Whole Loan, the Lightstone Portfolio Whole Loan and the Arizona Retail Portfolio Whole Loan are the only Serviced Whole Loans.

 

Serviced Whole Loan Collection Account”: With respect to each Serviced Whole Loan, the separate account or sub-account created and maintained by the Master Servicer pursuant to Section 3.05(g) on behalf of the Certificateholders and the related Serviced Companion Loan Noteholders, which shall be entitled “Wells Fargo Bank, National Association, as Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of Deutsche Mortgage & Asset Receiving Corporation, CD 2017-CD6 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2017-CD6, Serviced Whole Loan Collection Account.” Amounts in any Serviced Whole Loan Collection Account applicable to the related Serviced Companion Loans shall not be assets of the Trust Fund, but instead shall be held by the Master Servicer on behalf of the Trust Fund (in respect of amounts reimbursable therefrom) and, the related Serviced Companion Loan Noteholders. Any such account or sub-account shall be an Eligible Account or a sub-account of an Eligible Account (including a sub-account of the Collection Account).

 

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Serviced Whole Loan Remittance Amount”: For each distribution date that a Master Servicer is required to make a distribution to a Serviced Companion Loan Noteholder pursuant to Section 3.05(h) and with respect to each Serviced Whole Loan and related Mortgaged Property (if it becomes a Serviced REO Property), any amount received by the Master Servicer (or, with respect to a Serviced REO Property, the Special Servicer) during the related Collection Period that is payable to the Serviced Companion Loan Noteholder(s) pursuant to the related Intercreditor Agreement or to be remitted to the Collection Account.

 

Serviced Whole Loan Remittance Date”: With respect to any Serviced Companion Loan, (x) prior to contribution of such Serviced Companion Loan to an Other Securitization, a date as set forth in the related Intercreditor Agreement (or if no such date is specified, the Master Servicer Remittance Date) and (y) following contribution of such Serviced Companion Loan to an Other Securitization, the earlier of (A) the Master Servicer Remittance Date or (B) the Business Day immediately succeeding the “determination date” set forth in the related Other Pooling and Servicing Agreement; provided, however, that no remittance is required to be made until two (2) Business Days after receipt of the related Periodic Payment with respect to the related Serviced Whole Loan.

 

Serviced Whole Loan REO Account”: As defined in Section 3.15(b) of this Agreement.

 

Serviced Whole Loan Special Servicer”: Any Person responsible for performing the duties of Special Servicer hereunder with respect to a Serviced Whole Loan or any related Serviced REO Property.

 

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

 

Servicer Termination Event”: A Master Servicer Termination Event or Special Servicer Termination Event, as applicable.

 

Servicing Advance”: 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 Serviced Mortgage Loan and any related Serviced Companion 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 Serviced Mortgage Loan or an REO Property, 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 3.04, (ii) the preservation, restoration and protection of a Mortgaged Property, (iii) obtaining any Insurance and Condemnation

 

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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 Companion Loan under the related Intercreditor Agreement or this Agreement.

 

Servicing Compensation”: With respect to any Collection Period, the related Servicing Fee, Net Prepayment Interest Excess, if any, and any other fees, charges or other amounts payable to the Master Servicer under this Agreement for such period.

 

Servicing Criteria”: The criteria set forth in paragraph (d) of Item 1122 of Regulation AB as such may be amended from time to time.

 

Servicing Fee”: With respect to each Mortgage Loan or Serviced Pari Passu Companion Loan and for any Distribution Date, an amount per Interest Accrual Period equal to the product of (i) the respective Servicing Fee Rate (adjusted to a monthly rate) and (ii) the Stated Principal Balance of such Mortgage Loan or Serviced Pari Passu Companion Loan as of the Due Date in the immediately preceding Collection Period (without giving effect to payments of principal on such Mortgage Loan or Serviced Pari Passu Companion Loan on such Due Date). The Servicing Fee shall be calculated in accordance with the provisions of Section 1.02(a) of this Agreement. For the avoidance of doubt, with respect to any Subordinate Companion Loan, unless otherwise agreed upon with the holder of the related Subordinate Companion Loan, no Servicing Fee shall accrue or be payable on the principal balance thereof, and with respect to each Mortgage Loan, the Servicing Fee shall be deemed payable from the Lower-Tier REMIC.

 

Servicing Fee Amount”: With respect to the Master Servicer and any date of determination, the aggregate of the products obtained by multiplying, for each Mortgage Loan or Serviced Pari Passu Companion Loan, (a) the Stated Principal Balance of such Mortgage Loan or Serviced Pari Passu Companion Loan as of the end of the immediately preceding Collection Period and (b) the difference between the Servicing Fee Rate for such Mortgage Loan or Serviced Pari Passu Companion Loan over the servicing fee rate (if any) applicable to such Mortgage Loan or Serviced Pari Passu Companion Loan as specified in any Sub-Servicing Agreement related to such Mortgage Loan or Serviced Pari Passu Companion Loan. With respect to each Sub-Servicer and any date of determination, the aggregate of the products obtained by multiplying, for each Mortgage Loan or Serviced Pari Passu Companion Loan serviced by such Sub-Servicer, (a) the Stated Principal Balance of such Mortgage Loan or Serviced Pari Passu Companion Loan as of the end of the immediately preceding Collection

 

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Period and (b) the servicing fee rate specified in the related Sub-Servicing Agreement for such Mortgage Loan or the Serviced Pari Passu Whole Loan.

 

Servicing Fee Rate”: (A) With respect to each Mortgage Loan, the sum of the Master Servicing Fee Rate and the related Primary Servicing Fee Rate, if any, which rates per annum are set forth on Exhibit B to this Agreement, (B) with respect to each Headquarters Plaza Companion Loan, 0.0025%, (C) with respect to the Lightstone Portfolio Companion Loan, 0.0025%, and (D) with respect to the Arizona Retail Portfolio Companion Loan, 0.01%.

 

Servicing File”: As defined in the related Mortgage Loan Purchase Agreement and including any original or copy of any replacement comfort letter related to any hospitality property following receipt thereof by the Master Servicer.

 

Servicing Function Participant”: Any Person, other than the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor or the Asset Representations Reviewer, that, within the meaning of Item 1122 of Regulation AB, is performing activities that address the Servicing Criteria, unless such Person’s activities relate only to 5% or less of the Mortgage Loans (based on their Stated Principal Balance) or the Master Servicer has assumed responsibility for the servicing activity, as provided for under Regulation AB. No Non-Serviced Mortgage Loan Service Provider shall be a Servicing Function Participant retained by any Servicing Function Participant that is a party to this Agreement, unless such party is a Servicing Function Participant in connection with its servicing obligations under this Agreement.

 

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 and/or Serviced 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 Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trustee by the Master Servicer or the Special Servicer, as applicable, as such list may from time to time be amended.

 

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 Borrower 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 Other Securitization will cause servicing to shift from this Agreement to the related Other Pooling and Servicing Agreement pursuant to the terms of the related Intercreditor Agreement for such Servicing Shift Whole Loan. For the avoidance of doubt, there are no Servicing Shift Lead Notes as of the Closing Date.

 

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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 Other Securitization, 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 Other Securitization) with notice in accordance with the terms of the related Intercreditor Agreement that such Servicing Shift Lead Note is to be included in such Other Securitization, which notice shall include contact information for each party to the related Other Pooling and Servicing Agreement and the identity of the other related “controlling class representative” (or analogous term). For the avoidance of doubt, there are no Servicing Shift Whole Loans as of the Closing Date.

 

Servicing Shift Mortgage Loan” With respect to any Servicing Shift Whole Loan, a Mortgage Loan included in the Trust Fund that will be serviced under this Agreement as of the Closing Date, but the servicing of which is expected to shift to the pooling and servicing agreement entered into in connection with the securitization of the related Controlling Companion Loan on and after the date of such securitization. For the avoidance of doubt, there are no Servicing Shift Mortgage Loans as of the Closing Date.

 

Servicing Shift Whole Loan”: Any Whole Loan serviced under this Agreement as of the Closing Date, which includes the related Servicing Shift Mortgage Loan included in the Trust Fund and one or more Pari Passu Companion Loans not included in the Trust Fund, but the servicing of which is expected to shift to the pooling and servicing agreement entered into in connection with the securitization of the related Controlling Companion Loan on and after the date of such securitization. For the avoidance of doubt, there are no Servicing Shift Whole Loans as of the Closing Date.

 

Servicing Standard”: With respect to the Master Servicer and the Special Servicer, to diligently service and administer the applicable Serviced Mortgage Loans and any related Serviced Companion Loans, Specially Serviced Loans and Serviced REO Loans for which each is responsible in the best interests of and for the benefit of all of the Certificateholders and, in the case of any Serviced Whole Loan, the related Serviced Companion Loan Noteholder(s) (as a collective whole as if such Certificateholders and Serviced Companion Loan Noteholder(s) constituted a single lender (and with respect to any Serviced Whole Loan with any related Subordinate Companion Loan(s), taking into account the subordinate nature of such Subordinate Companion Loan(s)), as determined by the Master Servicer or the Special Servicer, as the case may be, in the exercise of its reasonable judgment) in accordance with applicable law, the terms of this Agreement, the applicable Loan Documents and any related Intercreditor Agreement, and to the extent consistent with the foregoing, in accordance with the higher of the following standards of care:

 

(a)          the same manner in which, and with the same care, skill, prudence and diligence with which the Master Servicer or the Special Servicer, as the case may be, services and administers similar mortgage loans for other third-party portfolios, and

 

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(b)          the same care, skill, prudence and diligence with which the Master Servicer or the Special Servicer, as the case may be, services and administers similar mortgage loans owned, if any, by the Master Servicer or the Special Servicer, as the case may be.

 

In either case, with a view to the timely recovery of all payments of principal and interest under the applicable Mortgage Loans or Serviced Whole Loans or, in the case of a Specially Serviced Loan or an REO Property, the maximization of timely recovery of principal and interest on a net present value basis (determined in accordance with the Loan Documents or, if the Loan Documents are silent, at the Calculation Rate) on the applicable Mortgage Loans or Serviced Whole Loans, and the best interests of the Trust and the Certificateholders and, in the case of any Serviced Whole Loan, the related Serviced Companion Loan Noteholder(s), (as a collective whole as if such Certificateholders and Serviced Companion Loan Noteholder(s), as applicable, constituted a single lender (and with respect to any Serviced Whole Loan with a related Subordinate Companion Loan, taking into account the pari passu or subordinate nature of such Subordinate Companion Loan), as determined by the Master Servicer or the Special Servicer, as the case may be, in its reasonable judgment in either case, giving due consideration to the customary and usual standards of practice of prudent institutional commercial, multifamily and manufactured housing community mortgage loan servicers, but without regard to any potential conflict of interest arising from (a) any relationship that the Master Servicer or the Special Servicer, as the case may be, or any Affiliate of the Master Servicer or the Special Servicer, may have with the related Borrower, any Mortgage Loan Seller, any other party to this Agreement or any Affiliate of the foregoing; (b) the ownership of any Certificate or any interest in any Non-Serviced Companion Loan, Serviced Companion Loan, any mezzanine loan or subordinate debt related to a Mortgage Loan by the Master Servicer or the Special Servicer, as the case may be, or any Affiliate thereof; (c) the Master Servicer’s obligation to make Advances; (d) the Master Servicer’s or the Special Servicer’s, or any of its affiliates, as the case may be, right to receive compensation or reimbursement of costs for its services hereunder or with respect to any particular transaction; (e) the ownership, servicing or management for others of any other mortgage loans, subordinate debt, mezzanine loans or mortgaged properties not covered by this Agreement or held by the Trust Fund by the Master Servicer or the Special Servicer or any Affiliate of the Master Servicer or the Special Servicer, as applicable; (f) any debt that the Master Servicer or the Special Servicer or any Affiliate of the Master Servicer or the Special Servicer, as applicable, has extended to any Borrower or an Affiliate of any Borrower (including, without limitation, any mezzanine financing); (g) any option to purchase any Mortgage Loan or the related Companion Loan the Master Servicer or Special Servicer, as the case may be, or any of its affiliates may have; (h) any obligation of the Master Servicer, the Special Servicer or one of their respective Affiliates, to repurchase or substitute for a Mortgage Loan as Mortgage Loan Seller (if the Master Servicer or the Special Servicer or one of their respective affiliates is a Mortgage Loan Seller).

 

Servicing Transfer Event”: An event specified in the definition of Specially Serviced Loan.

 

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Significant Obligor”: (a) Any obligor (as defined in Item 1101(i) of Regulation AB) or group of affiliated obligors on any Mortgage Loan or group of Mortgage Loans that represent, as of the Closing Date, 10% or more of the Mortgage Pool (by principal balance as of the Cut-off Date); or (b) any single Mortgaged Property or group of Mortgaged Properties securing any Mortgage Loan or group of cross-collateralized and/or cross-defaulted Mortgage Loans that represent, as of the Closing Date, 10% or more of the Mortgage Pool (by principal balance as of the Cut-off Date). As of the Closing Date, there is no Significant Obligor relating to the Trust.

 

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 on which financial statements for such calendar quarter are required to be delivered to the related lender under the related Loan Documents. The parties to this Agreement acknowledge that in the event the Mortgaged Property securing any related Serviced Companion Loan is a “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) with respect to an Other Securitization that includes such Serviced Companion Loan, the date on which such quarterly financial statements are required to be delivered to the related lender under the related Mortgage Loan documents is, with respect to net operating income information, for (A) each Headquarters Plaza Companion Loan, 30 days following the end of each fiscal quarter and (B) the Lightstone Portfolio Companion Loan, 30 days following the end of each fiscal quarter.

 

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

 

Similar Law”: As defined in Section 5.02(k) of this Agreement.

 

Single Loan REMICs”: Each of the Gurnee Mills Loan REMIC and the West Burlington Plaza Loan REMIC, collectively.

 

Small Loan Appraisal Estimate”: With respect to any Serviced Mortgage Loan and any related Serviced Companion Loan having a Stated Principal Balance of less than $2,000,000, the Special Servicer’s good faith estimate of the value of the Mortgaged Property securing such Mortgage Loan or Serviced Whole Loan, as certified to the Master Servicer by the Special Servicer.

 

Sole Certificateholder”: Any Holder (or Holders, provided they act in unanimity) holding 100% of the then-outstanding Certificates (including Certificates with Certificate Balances that have been actually or notionally reduced by any Realized Losses or Appraisal Reduction Amounts, but excluding the Class S and Class R Certificates) or an assignment of the Voting Rights thereof; provided that the Notional Amounts or the Certificate Balances, as applicable, of the Class X-A, Class X-B and Class X-D Certificates and the Certificate Balances of the Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class A-5, Class A-M, Class B, Class C and Class D Certificates have been reduced to zero.

 

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Special Notice”: Any (a) notice transmitted to Certificateholders pursuant to Section 5.05(c) of this Agreement, (b) notice of any request by at least 25% of the Voting Rights of the Certificates to terminate and replace the Special Servicer pursuant to Section 3.22(d) of this Agreement, (c) notice of any request by at least 15% of the Voting Rights of the Certificates to terminate and replace the Operating Advisor pursuant to Section 7.07(b) of this Agreement and (d) notice transmitted to Certificateholders pursuant to Section 3.22(c) of this Agreement.

 

Special Servicer”: With respect to (i) each of the Serviced Mortgage Loans (other than any Conflicted Special Servicer Mortgage Loan) and any related Serviced Companion Loans, LNR Partners, LLC, or its successor in interest, or any successor special servicer appointed as provided herein and (ii) with respect to any Conflicted Special Servicer Mortgage Loan, if any, the related Non-Conflicted Special Servicer appointed pursuant to Section 3.22(j) of this Agreement, as applicable and as the context may require.

 

Special Servicer Major Decision”: Any Major Decision under clauses (a) through (k) and clause (m) of the definition of “Major Decision”.

 

Special Servicer Non-Major Decision”: Any of the following:

 

(a)          approving leases, lease modifications or amendments or any requests for subordination, non-disturbance and attornment agreements for leases in excess of the lesser of (i) 30,000 square feet and (ii) 30% of the net rentable area at the related Mortgaged Property;

 

(b)         approving material rights-of-way and material easements, and consent to subordination of the related Mortgage Loan or Serviced Whole Loan to such material rights-of-way or easements;

 

(c)          agreeing to any modification, waiver, consent or amendment of the related Mortgage Loan or Serviced Whole Loan in connection with a defeasance if such proposed modification, waiver, consent or amendment is with respect to (i) a waiver of a mortgage loan event of default (but excluding non-monetary events of default other than defaults relating to transfers of interest in the Borrower or the existing collateral or material modifications of the existing collateral), (ii) a modification of the type of defeasance collateral required under the Mortgage Loan or Serviced Whole Loan documents other than direct, non-callable obligations of the United States would be permitted or (iii) a modification that would permit a principal prepayment instead of defeasance if the applicable Loan Documents do not otherwise permit such principal prepayment; provided that the foregoing is not otherwise a Major Decision;

 

(d)          approving any waiver regarding the receipt of financial statements that involves permitting delivery of financial statements less than quarterly or more than 60 days after the end of the calendar quarter;

 

(e)          any requests for the disbursement of (i) earnouts or holdback amounts with respect to any Specially Serviced Loan that is not otherwise a Major Decision and

 

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(ii) amounts from (A) any escrow accounts, reserve accounts, letters of credit or other collateral related to hospitality property improvement plans or (B) earnout or performance escrows, reserves or holdbacks, in the case of clause (ii)(A) and (ii)(B), relating to certain Mortgage Loans set forth on Exhibit Y of this Agreement;

 

(f)           approving any proposed modification or waiver of any material provision in the related loan documents governing the type, nature or amount of insurance coverage required to be obtained and maintained by the related borrower;

 

(g)          approving any casualty insurance settlements or condemnation settlements, and determining whether to apply casualty proceeds or condemnation awards to the reduction of the debt rather than to the restoration of the Mortgaged Property;

 

(h)          approving annual budgets for the related Mortgaged Property if the budget provides for (x) increases in operating expenses equal to or more than 110% of the amount budgeted therefor for the prior year and (y) payments to a borrower affiliate;

 

(i)           franchise changes with respect to a Serviced Mortgage Loan and any related Serviced Companion Loan for which the lender is not required to consent or approve under the related Mortgage Loan documents;

 

(j)           agreeing to any modification or amendment to any ground lease or any subordination, non-disturbance and attornment agreement relating to any ground lease or any entry into a new ground lease with respect to a Mortgaged Property or determining whether to cure any default by a Borrower under a ground lease;

 

(k)          approving any transfers of an interest in the Borrower, unless such transfer (i) is permitted under the terms of the related Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Loan Documents that do not include any other approval or exercise of discretion, including a consent to transfer to any subsidiary or Affiliate of such Borrower or to a Person acquiring less than a majority interest in such Borrower, and (ii) does not involve incurring new mezzanine financing or a change in control of the Borrower;

 

(l)           any consent to a transfer of the Mortgaged Property or interests in the Borrower where (i) such transfer may be effected without the consent or discretion of the lender under the related loan agreement, (ii) the loan documents include specific objective conditions that must be satisfied for such action where lender discretion is not necessary in order to determine whether such specific objective conditions have been satisfied and (iii) such specific objective conditions have been satisfied with no exceptions; and

 

(m)         any consent to the incurrence of additional debt where (i) such incurrence of debt may be effected without the consent or discretion of the lender under the related loan agreement, (ii) the loan documents include specific objective conditions that must be

 

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satisfied for such action where lender discretion is not necessary in order to determine whether such specific objective conditions have been satisfied and (iii) such specific objective conditions have been satisfied with no exceptions;

 

provided, however, with respect to clauses (c)(i) and (c)(ii) of this definition the Master Servicer shall evaluate and process requests for any modifications described in such clauses and obtain the consent or deemed consent of the Special Servicer as provided in the this Agreement.

 

Notwithstanding the foregoing, the Master Servicer and Special Servicer may (and with respect to the PrinREI Serviced Mortgage Loans, hereby do) mutually agree as provided in this Agreement that the Master Servicer shall process any of the foregoing matters (as well as any Special Servicer Major Decision) with respect to any non-Specially Serviced Loan (other than a Non-Serviced Mortgage Loan). If the Master Servicer and Special Servicer mutually agree that the Master Servicer shall process a Special Servicer Non-Major Decision, the Master Servicer (or the primary servicer on behalf of the Master Servicer, in the case of the PrinREI Serviced Mortgage Loans) shall obtain the Special Servicer’s prior consent to such Special Servicer Non-Major Decision.

 

Special Servicer Servicing Personnel”: The divisions and individuals of any Special Servicer who are involved in the performance of the duties of such Special Servicer under this Agreement.

 

Special Servicer Termination Event”: As defined in Section 7.01(b) of this Agreement.

 

Special Servicing Compensation”: With respect to any Serviced Mortgage Loan and any related Serviced Companion Loan, any of the Special Servicing Fee, Workout Fee, Liquidation Fee and any other fees, charges or other amounts which shall be due to the Special Servicer that are expressly provided for in Section 3.12 of this Agreement.

 

Special Servicing Fee”: With respect to each Specially Serviced Loan (or Serviced REO Loan) for each calendar month (or portion thereof), the fraction of the Special Servicing Fee Rate applicable to such month, or portion thereof (determined using the same interest accrual methodology that is applied with respect to the Mortgage Rate for such Mortgage Loan for such month) multiplied by the Stated Principal Balance of such Specially Serviced Loan as of the Due Date (without giving effect to all payments of principal on such Specially Serviced Loan or Serviced REO Loan on such Due Date) in the Collection Period prior to such Distribution Date (or, in the event that a Principal Prepayment in full or an event described in clauses (i)-(vii) under the definition of Liquidation Proceeds has occurred with respect to any such Specially Serviced Loan or Serviced REO Loan on a date that is not a Due Date, on the basis of the actual number of days to elapse from and including the most recently preceding related Due Date to but excluding the date of such Principal Prepayment or Liquidation Proceeds event in a month consisting of 30 days). For the avoidance of doubt, the Special Servicing Fee shall be deemed to be paid from the Lower-Tier REMIC with respect to the Mortgage Loans.

 

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Special Servicing Fee Rate”: With respect to each Specially Serviced Loan and Serviced REO Loan, a rate equal to 0.25% per annum, or, if such rate would result in a Special Servicing Fee that would be less than $3,500 in any given month, such higher rate as would result in a Special Servicing Fee equal to $3,500 for the related month, then the Special Servicing Fee Rate for such month for such Specially Serviced Loan or REO Loan shall be such higher per annum rate as would result in a Special Servicing Fee equal to $3,500 for such month with respect to such Specially Serviced Loan or REO Loan.

 

Specially Serviced Loan”: Subject to Section 3.23 of this Agreement, any Serviced Mortgage Loan or Serviced Companion Loan with respect to which:

 

(a)          either (i) with respect to such Mortgage Loan or Serviced Companion Loan, other than a Balloon Loan, a payment default shall have occurred on such Mortgage Loan or Serviced Companion Loan at its Maturity Date or, if the Maturity Date of such Mortgage Loan or Serviced Companion Loan has been extended in accordance herewith, a payment default occurs on such Mortgage Loan or Serviced Companion Loan at its extended Maturity Date or (ii) with respect to a Balloon Loan, a payment default shall have occurred with respect to the related Balloon Payment; provided that if (A) the related Borrower is diligently seeking a refinancing or sale of the related Mortgaged Property or Mortgaged Properties and delivers, on or prior to the related Maturity Date or extended Maturity Date, a statement to that effect and delivers, within 30 days following the related Maturity Date or extended Maturity Date, a refinancing commitment, letter of intent or otherwise binding application for refinancing from an acceptable lender or signed purchase agreement reasonably acceptable to the Master Servicer (who will be required to promptly deliver a copy to the Special Servicer) or the Special Servicer (who will be required to promptly deliver a copy to the Master Servicer), in each case, who will promptly deliver a copy to the Operating Advisor (if a Control Termination Event has occurred and is continuing) and the Directing Holder (but only for so long as no Consultation Termination Event has occurred and is continuing), (B) the related Borrower continues to make its Assumed Scheduled Payment, (C) no other Servicing Transfer Event shall have occurred with respect to such Mortgage Loan or Serviced Companion Loan, a Servicing Transfer Event will not occur until the earlier of (1) 120 days beyond the related Maturity Date or extended Maturity Date and (2) the termination of such transaction document;

 

(b)          any Periodic Payment (other than a Balloon Payment), or any amount due on a monthly basis as an Escrow Payment or reserve funds, is 60 days or more delinquent;

 

(c)          the Master Servicer or the Special Servicer determines in its sole and reasonable business judgment, exercised in accordance with the Servicing Standard, that (x) a default consisting of a failure to make a payment of principal or interest is reasonably foreseeable or there is a significant risk of such default or (y) any other default that is likely to impair the use or marketability of the related Mortgaged Property or the value of the Mortgaged Property as security for the Mortgage Loan or, if

 

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applicable, Serviced Companion Loan is reasonably foreseeable or there is a significant risk of such default, which monetary or other default, in either case, would likely continue unremedied beyond the applicable grace period (or, if no grace period is specified, for a period of 60 days) and is not likely to be cured by the related Borrower within 60 days or, except as provided in clause (a)(ii) above, in the case of a Balloon Payment, for at least 30 days;

 

(d)          the related Borrower has become the subject of 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, or the appointment of a conservator, 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;

 

(e)          the related Borrower 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 Borrower of or relating to all or substantially all of its property;

 

(f)           the related Borrower 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;

 

(g)          a default, of which the Master Servicer or Special Servicer has notice (other than a failure by such related Borrower to pay principal or interest) and that in the opinion of the Master Servicer or Special Servicer (and, in the case of the Special Servicer, for so long as no Control Termination Event has occurred and is continuing, with the consent of the Directing Holder and, with respect to any Serviced Whole Loan, in consultation with the related Serviced Companion Loan Noteholders to the extent provided for in the related Intercreditor Agreement) materially and adversely affects the interests of the Certificateholders or any holder of a Serviced Companion Loan, if applicable, occurs and remains unremedied for the applicable grace period specified in the Loan Documents for such Mortgage Loan or Serviced Companion Loan (or if no grace period is specified for those defaults which are capable of cure, 60 days); or

 

(h)          the Master Servicer or Special Servicer receives notice of the foreclosure or proposed foreclosure of any lien on the related Mortgaged Property (each of clause (a) through (h), a “Servicing Transfer Event”);

 

provided, that such Mortgage Loan or Serviced Companion Loan will cease to be a Specially Serviced Loan (each, a “Corrected Mortgage Loan”) (i) with respect to the circumstances described in clauses (a) and (b) above, when the related Borrower thereunder has brought such Mortgage Loan or Serviced Companion Loan current and thereafter made three consecutive full and timely Periodic Payments, including pursuant to any workout of such Mortgage Loan or

 

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Serviced Companion Loan, (ii) with respect to the circumstances described in clauses (c), (d), (e), (f) and (h) above, when such circumstances cease to exist in the good faith judgment of the Special Servicer, or (iii) with respect to the circumstances described in clause (g) above, when such default is cured (as determined by the Special Servicer in accordance with the Servicing Standard) or waived by the Special Servicer; provided, in each case, that at that time no circumstance exists (as described above) that would cause such Mortgage Loan or Serviced Companion Loan to continue to be characterized as a Specially Serviced Loan.

 

If a Servicing Transfer Event exists with respect to any Mortgage Loan included in a Serviced Whole Loan, then it will also be deemed to exist with respect to the related Serviced Companion Loans, and vice versa.

 

Startup Day”: In the case of the Upper-Tier REMIC and the Lower-Tier REMIC, the day designated as such pursuant to Section 2.06(a) of this Agreement.

 

Stated Principal Balance”: With respect to any Mortgage Loan, any Serviced Companion Loan or Serviced Whole Loan, as applicable, on any date of determination, the principal balance as of the Cut-off Date of such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan (or in the case of a Replacement Mortgage Loan, the outstanding principal balance as of the related date of substitution and after application of all scheduled payments of principal and interest due on or before the related Due Date in the month of substitution, whether or not received), as reduced (to not less than zero) on each Distribution Date by (i) all payments (or P&I Advances in lieu thereof) of, and all other collections allocated as provided in Section 1.02 of this Agreement to, principal of or with respect to such Mortgage Loan, the Serviced Companion Loan or Serviced Whole Loan, as applicable, that are distributed to the Certificateholders on such Distribution Date or Serviced Companion Loan Noteholders on the related remittance date in the same calendar month as such Distribution Date or applied to any other payments required under this Agreement or related Intercreditor Agreement on or prior to such Distribution Date, and (ii) any principal forgiven by the Special Servicer (or with respect to a Non-Serviced Mortgage Loan, by the related Other Special Servicer or other applicable servicer) and other principal losses realized in respect of such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan during the related Collection Period (or with respect to a Non-Serviced Mortgage Loan, other principal losses realized in respect of such Non-Serviced Mortgage Loan during the related Collection Period as determined in accordance with the terms of the Other Pooling and Servicing Agreement).

 

A Mortgage Loan or any related REO 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 Liquidation Proceeds, if any, are to be (or, if no such Liquidation Proceeds are received, would have been) distributed to Certificateholders. The Stated Principal Balance of any Mortgage Loan or Serviced Whole Loan with respect to which the Master Servicer or Special Servicer has made a Final Recovery Determination is zero.

 

Station Place III Companion Loans”: As defined in the Preliminary Statement.

 

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Station Place III Mortgage Loan”: As defined in the Preliminary Statement.

 

Station Place III Service Providers”: With respect to the Station Place III Companion Loans, the related Other Trustee, Other Servicer, Other Special Servicer and any related sub-servicer, as applicable, and any other Person that makes principal and/or interest advances in respect of such mortgage loan pursuant to any related Other Pooling and Servicing Agreement.

 

Station Place III Whole Loan”: The Station Place III Companion Loans, together with the Station Place III Mortgage Loan. References herein to the Station Place III Whole Loan shall be construed to refer to the aggregate indebtedness under the Station Place III Mortgage Loan and the Station Place III Companion Loans.

 

Sub-Servicer”: Any Person engaged by the Master Servicer or the Special Servicer (including, for the avoidance of doubt, each Mortgage Loan Seller Sub-Servicer and any primary servicer) to perform servicing activities with respect to one or more Mortgage Loans or REO Loans.

 

Sub-Servicing Agreement”: The written contract between the Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the other hand, relating to servicing and administration of the Mortgage Loans as provided in Section 3.01(c) of this 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 or a Servicing Function Participant.

 

Subject Loans”: As defined in Section 11.02(a).

 

Subordinate Companion Loan”: With respect to any Whole Loan, any related subordinated loan not included in the Trust, which is subordinated in right of payment to the related Mortgage Loan to the extent set forth in the related Intercreditor Agreement. The Burbank Office Portfolio Subordinate Companion Loans, the Colorado Center Subordinate Companion Loans and the Arizona Retail Portfolio Subordinate Companion Loan are the only Subordinate Companion Loans related to the Trust.

 

Substitution Shortfall Amount”: In connection with the substitution of one or more Replacement Mortgage Loans for one or more Removed Mortgage Loans, the amount, if any, by which the Purchase Price or aggregate Purchase Price, as the case may be, for such Removed Mortgage Loan(s) exceeds the initial Stated Principal Balance or aggregate initial Stated Principal Balance, as the case may be, of such Replacement Mortgage Loan(s).

 

“Successor Third-Party Purchaser”: A third party purchaser (other than a “majority-owned affiliate” (as such term is defined under Regulation RR) of the Retaining

 

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Sponsor) that acquires all of the RR Certificates from the Retaining Sponsor, or a “majority-owned affiliate” (as such term is defined under Regulation RR) thereof, in compliance with this Agreement, the Credit Risk Retention Agreement, an eligible subsequent credit risk retention agreement and Rule 7 of Regulation RR.

 

Tax Returns”: The federal income tax returns on IRS Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed by the Certificate Administrator on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC due to its classification as a REMIC under the REMIC Provisions and the federal income tax return to be filed by the Certificate Administrator on behalf of the Grantor Trust due to its classification as a grantor trust under subpart E, part I of subchapter J of the Code, together with any and all other information, reports or returns that may be required to be furnished to the Certificateholders or filed with the IRS or any other governmental taxing authority under any applicable provisions of federal law or Applicable State and Local Tax Law.

 

Terminated Party”: As defined in Section 7.01(e) of this Agreement.

 

Terminating Party”: As defined in Section 7.01(e) of this Agreement.

 

Termination Date”: The Distribution Date on which the Trust Fund is terminated pursuant to Section 9.01 of this Agreement.

 

Test”: As defined in Section 11.01(b)(iii).

 

Third Party Appraiser”: A Person performing an Appraisal.

 

Third Party Reports”: With respect to any Mortgaged Property, the related Appraisal, Phase I environmental report, Phase II environmental report, seismic report, engineering report, structural report, property condition report or similar report, if any.

 

Transfer”: Any direct or indirect transfer or other form of assignment of any Ownership Interest in a Class R Certificate.

 

Transfer Restriction Period”: The period from the Closing Date to the earlier 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 Balance of the Mortgage Loans; (ii) the date on which the aggregate outstanding principal balance of the Sequential Pay Certificates has been reduced to 33.0% of the aggregate outstanding principal balance of the Sequential Pay Certificates as of the Cut-off Date; and (iii) two years after the Closing Date; and

 

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(b) such time as when Regulation RR ceases to require the retention of risk with respect to the securitization of the Mortgage Loans contemplated by this Agreement, resulting from the repeal, amendment or modification of all or any portion of Regulation RR.

 

Transferee Affidavit”: As defined in Section 5.02(l)(ii) of this Agreement.

 

Transferor Letter”: As defined in Section 5.02(l)(ii) of this Agreement.

 

Trust” or “Trust Fund”: The corpus of the trust created hereby and to be administered hereunder, consisting of (in each case, to the extent of the Trust Fund’s interest therein and specifically excluding any interest of any Serviced Companion Loan Noteholder therein): (i) such Mortgage Loans as from time to time are subject to this Agreement, together with the Mortgage Files relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut-off Date; (iii) the Trust Fund’s interest in any REO Property; (iv) all revenues received in respect of any REO Property; (v) any Assignments of Leases, Rents and Profits and any security agreements related to the Mortgage Loans; (vi) any indemnities or guaranties given as additional security for any Mortgage Loans; (vii) a security interest in all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and Reserve Accounts; (viii) the Loss of Value Reserve Fund; (ix) the Collection Account, the Serviced Whole Loan Collection Accounts, the Distribution Accounts, any Gain-on-Sale Reserve Account, the Interest Reserve Account and the Trust’s interest in any REO Account, including any amounts on deposit therein, assets credited thereto and any reinvestment income, as applicable; (x) a security interest in any environmental indemnity agreements relating to the Mortgaged Properties; (xi) a security interest in all insurance policies with respect to the Mortgage Loans and the Mortgaged Properties; (xii) the rights and remedies under the Mortgage Loan Purchase Agreements relating to document delivery requirements with respect to the Mortgage Loans and the representations and warranties of the related Mortgage Loan Seller regarding its Mortgage Loans; (xiii) the Lower-Tier Regular Interests; and (xiv) 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 Borrower). For the avoidance of doubt, no Retained Defeasance Rights and Obligations will be an asset of the Trust.

 

Trust Ledger”: Amounts deposited in the Collection Account or a Serviced Whole Loan Collection Account and attributable to the Mortgage Loans or related Serviced Whole Loan, respectively, which are maintained pursuant to Section 3.06(a) and Section 3.06(b) of this Agreement, as applicable, and held on behalf of the Trustee on behalf of the Certificateholders or held on behalf of the Trustee on behalf of the Certificateholders and related Companion Loan Noteholders, as applicable.

 

Trust REMICs”: The Lower-Tier REMIC, the Upper-Tier REMIC and the Single Loan REMICs.

 

Trustee”: Wilmington Trust, National Association, in its capacity as Trustee, or its successor in interest, or any successor Trustee appointed as herein provided.

 

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Trustee Personnel”: The divisions and individuals of the Trustee who are involved in the performance of the duties of the Trustee under this Agreement.

 

U-Haul SAC Portfolios 14, 15, 17 Companion Loans”: As defined in the Preliminary Statement.

 

U-Haul SAC Portfolios 14, 15, 17 Mortgage Loan”: As defined in the Preliminary Statement.

 

U-Haul SAC Portfolios 14, 15, 17 Service Providers”: With respect to the U-Haul SAC Portfolios 14, 15, 17 Companion Loans, the related Other Trustee, Other Servicer, Other Special Servicer and any related sub-servicer, as applicable, and any other Person that makes principal and/or interest advances in respect of such mortgage loan pursuant to any related Other Pooling and Servicing Agreement.

 

U-Haul SAC Portfolios 14, 15, 17 Whole Loan”: The U-Haul SAC Portfolios 14, 15, 17 Companion Loans, together with the U-Haul SAC Portfolios 14, 15, 17 Mortgage Loan. References herein to the U-Haul SAC Portfolios 14, 15, 17 Whole Loan shall be construed to refer to the aggregate indebtedness under the U-Haul SAC Portfolios 14, 15, 17 Mortgage Loan and the U-Haul SAC Portfolios 14, 15, 17 Companion Loans.

 

Underwriters”: Deutsche Bank Securities Inc., Citigroup Global Markets Inc. and Academy Securities, Inc., and their respective successors in interest.

 

Unliquidated Advance”: Any Advance previously made by a party hereto that has been previously reimbursed, as between the Person that made the Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of a Workout-Delayed Reimbursement Amount pursuant to Section 3.06(a) of this Agreement, as applicable, but that has not been recovered from the related Borrower or otherwise from collections on or the proceeds of the Mortgage Loan or the applicable Serviced Whole Loan or Serviced REO Property in respect of which the Advance was made.

 

Unscheduled Payments”: With respect to a Mortgage Loan and a Collection Period, all Net Liquidation Proceeds, Net Condemnation Proceeds and Net Insurance Proceeds payable under such Mortgage Loan, the Purchase Price of any Mortgage Loan that is repurchased or purchased pursuant to Section 2.03(e), Section 3.16 or Section 9.01 of this Agreement, the Substitution Shortfall Amount with respect to any substitution pursuant to Section 2.03(g) of this Agreement and any other payments under or with respect to such Mortgage Loan not scheduled to be made, including Principal Prepayments received by the Master Servicer (but excluding Prepayment Premiums or Yield Maintenance Charges, if any) during such Collection Period.

 

Unscheduled Principal Distribution Amount”: With respect to any Distribution Date and the Mortgage Loans, the aggregate of the following: (a) all Principal Prepayments received on such Mortgage Loan on or prior to the Determination Date and (b) the principal portion of any other collections (exclusive of payments by Borrowers) received on the Mortgage

 

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Loans and any REO Properties on or prior to the related Determination Date whether in the form of Liquidation Proceeds, Insurance Proceeds and Condemnation Proceeds, net income, rents, and profits from REO Property or otherwise, that were identified and applied by the master servicer as recoveries of previously unadvanced principal of the related Mortgage Loan; provided, that all such Liquidation Proceeds and Insurance Proceeds and Condemnation Proceeds will be reduced by any unpaid Special Servicing Fees, Liquidation Fees, any amount related to the Loss of Value Payments to the extent that such amount was transferred into the Collection Account during the related Collection Period, accrued interest on Advances and other additional trust fund expenses incurred in connection with the related Mortgage Loan, thus reducing the Unscheduled Principal Distribution Amount.

 

Updated Appraisal”: An Appraisal of a Mortgaged Property or Serviced REO Property, as the case may be, conducted subsequent to any appraisal performed on or prior to the Cut-off Date and in accordance with Appraisal Institute standards, the costs of which shall be paid as a Servicing Advance by the Master Servicer. Updated Appraisals shall be conducted by an Independent MAI appraiser selected by the Special Servicer.

 

Updated Valuation”: With respect to a Serviced Mortgage Loan and any related Serviced Companion Loan having a Stated Principal Balance of $2,000,000 or higher, an Updated Appraisal. With respect to a Mortgage Loan having a Stated Principal Balance of less than $2,000,000, an updated Small Loan Appraisal Estimate or an Updated Appraisal.

 

Upper-Tier Distribution Account”: The segregated non-interest bearing trust account or sub-account created and maintained by the Certificate Administrator pursuant to Section 3.05(f) of this Agreement, which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CD 2017-CD6 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2017-CD6, Upper-Tier Distribution Account” and which must be an Eligible Account or a sub-account of an Eligible Account. The Upper-Tier Distribution Account shall be an asset of the Upper-Tier REMIC.

 

Upper-Tier REMIC”: A segregated asset pool within the Trust Fund consisting of the Lower-Tier Regular Interests, the Upper-Tier Distribution Account and amounts held therein from time to time.

 

U.S. Person”: A citizen or resident of the United States, a corporation, 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. 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. Persons).

 

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Voting Rights”: The portion of the voting rights of all of the Certificates that is allocated to any Certificateholder or Class of Certificateholders. At all times during the term of this Agreement, the percentage of Voting Rights assigned to each Class shall be: (a) 98% to be allocated among the Certificateholders of the respective Classes of Principal Balance Certificates in proportion to the Certificate Balances (and solely in connection with any vote for purposes of determining whether to remove the Special Servicer pursuant to Section 7.01(a) and the Operating Advisor pursuant to Section 7.07(a), taking into account any notional reduction in the Certificate Balance for Appraisal Reduction Amounts allocated to the Certificates pursuant to Section 4.08(a)) of their Certificates, (b) 2% to be allocated among the Certificateholders of the Class X-A, Class X-B and Class X-D Certificates (allocated to the Class X-A, Class X-B and Class X-D Certificates on a pro rata basis based on their respective outstanding Notional Amounts at the time of determination) and (c) 0%, in the case of the Class S and Class R Certificates.

 

WAC Rate”: With respect to any Distribution Date, a per annum rate equal to the fraction (expressed as a percentage) the numerator of which is the sum for all Mortgage Loans of the product of (i) the Net Mortgage Rate for each such Mortgage Loan as of the first day of the related Collection Period and (ii) the Stated Principal Balance of each such Mortgage Loan as of the first day of the related Collection Period, and the denominator of which is the sum of the Stated Principal Balances of all Mortgage Loans as of the first day of the related Collection Period (after giving effect to any payments received during any applicable grace period).

 

West Burlington Plaza Loan REMIC”: A segregated asset pool designated as a REMIC consisting of the West Burlington Plaza Mortgage Loan, the proceeds thereof and any property securing such Mortgage Loan that is acquired by foreclosure or deed-in-lieu of foreclosure (to the extent of the West Burlington Plaza Loan REMIC’s interest in such property securing the West Burlington Plaza Mortgage Loan).

 

West Burlington Plaza Loan REMIC Regular Interest”: As defined in the Preliminary Statement.

 

West Burlington Plaza Residual Interest”: As defined in the Preliminary Statement.

 

WFCM 2017-C39 Pooling and Servicing Agreement”: The pooling and servicing agreement, dated as of August 1, 2017, between Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells Fargo Bank, National Association, as master servicer, LNR Partners, LLC, as special servicer, Wilmington Trust, National Association, as trustee, Wells Fargo Bank, National Association, as certificate administrator, and Trimont Real Estate Advisors, LLC, as operating advisor and as asset representations reviewer, and entered into in connection with the creation of the WFCM 2017-C39 transaction.

 

Whole Loan”: Each of the Headquarters Plaza Whole Loan, U-Haul SAC Portfolios 14, 15, 17 Whole Loan, Burbank Office Portfolio Whole Loan, Lightstone Portfolio

 

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Whole Loan, IRG Portfolio Whole Loan, Station Place III Whole Loan, Moffett Place Building 4 Whole Loan, Corporate Woods Portfolio Whole Loan, Integrated Health Campus Whole Loan, Colorado Center Whole Loan, Gurnee Mills Whole Loan, Cleveland East Whole Loan, the Arizona Retail Portfolio Whole Loan and Covance Business Center Whole Loan.

 

WHFIT”: A “Widely Held Fixed Investment Trust” as that term is defined in Treasury Regulations section 1.671-5(b)(22) or successor provisions.

 

WHFIT Regulations”: Treasury Regulations section 1.671-5, as amended.

 

WHMT”: A “Widely Held Mortgage Trust” as that term is defined in Treasury Regulations section 1.671-5(b)(23) or successor provisions.

 

Withheld Amount”: With respect to each Mortgage Loan that accrues interest on an Actual/360 Basis, and with respect to each Distribution Date occurring in January of each calendar year that is not a leap year and February of each calendar year, unless in either case such Distribution Date is the final Distribution Date, an amount equal to one day’s interest at the Net Mortgage Rate on the respective Stated Principal Balance as of the Due Date in the month preceding the month in which such Distribution Date occurs, to the extent that a Periodic Payment or a P&I Advance is made in respect thereof.

 

The Withheld Amount for each applicable Distribution Date for each Mortgage Loan that does not accrue interest on a 30/360 basis will be equal to 1/31 of the interest accrued in respect of the immediately preceding Due Date, to the extent a Periodic Payment or P&I Advance is made in respect thereof.

 

Workout-Delayed Reimbursement Amounts”: With respect to any Mortgage Loan or, with respect to Servicing Advances, any Serviced Whole Loan, the amount of any Advance made with respect to such Mortgage Loan or Serviced Whole Loan on or before the date such Mortgage Loan or Serviced Whole Loan becomes (or, but for the making of three monthly payments under its modified terms, would then constitute) a Corrected Mortgage Loan, together with (to the extent accrued and unpaid) interest on such Advances, to the extent that (i) such Advance is not reimbursed to the Person who made such Advance on or before the date, if any, on which such Mortgage Loan or Serviced Whole Loan becomes a Corrected Mortgage Loan and (ii) the amount of such Advance becomes an obligation of the related Borrower to pay such amount under the terms of the modified Loan Documents.

 

Workout Fee”: An amount equal to the lesser of (1) 1.0% of each collection of interest and principal (including scheduled payments, prepayments (provided that a repurchase or substitution by a Mortgage Loan Seller of a Mortgage Loan due to a Material Defect or a Material Breach shall not be considered a prepayment for purposes of this definition), Balloon Payments and payments at maturity, but excluding late payment charges, Default Interest and Excess Interest) received on a Specially Serviced Loan that becomes a Corrected Mortgage Loan for so long as it remains a Corrected Mortgage Loan, pursuant to Section 3.12(c) of this Agreement and (2) $1,000,000, in the aggregate with respect to any particular workout of a

 

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Specially Serviced Loan; provided that the Workout Fee with respect to any Corrected Mortgage Loan shall be capped in accordance with Section 3.12(c) of this Agreement; provided, further that no Workout Fee shall be payable by the Trust with respect to any Corrected Mortgage Loan if and to the extent that the Corrected Mortgage Loan became a Specially Serviced Loan under clause (c) of the definition of “Specially Serviced Loan” (and no other clause of such definition) and no event of default actually occurs, unless the Mortgage Loan or Serviced Companion Loan is modified by the Special Servicer in accordance with the terms of this Agreement; provided, further that if a Mortgage Loan or Serviced Companion Loan becomes a Specially Serviced Loan only because of an event described in clause (a) of the definition of “Specially Serviced Loan” and the related collection of principal and interest is received within 3 months following the related maturity date as a result of the related Mortgage Loan or Serviced Companion Loan being refinanced or otherwise repaid in full, the Special Servicer shall not be entitled to collect a Workout Fee out of the proceeds received in connection with such workout if such fee would reduce the amount available for distributions to Certificateholders, but the Special Servicer may collect from the related Borrower and retain (x) a workout fee, (y) such other fees as are provided for in the related Loan Documents and (z) other appropriate fees in connection with such workout. The total amount of Workout Fees payable by the Trust with respect to any Corrected Mortgage Loan and with respect to any particular workout (assuming, for the purposes of this calculation, that such Corrected Mortgage Loan continues to perform throughout its term in accordance with the terms of the related workout) shall be reduced by the amount of any and all related Offsetting Modification Fees received by the Special Servicer as additional servicing compensation relating to such Corrected Mortgage Loan; provided that the Special Servicer shall be entitled to collect such Workout Fees from the Trust until such time it has been fully paid such reduced amount. For the avoidance of doubt, the Mortgage Loan Seller will be required to pay a Workout Fee in connection with a repurchase or substitution to the extent the Special Servicer was entitled to such a fee and such fee was unpaid immediately prior to such repurchase or substitution or was previously paid by the Trust and was not reimbursed by the related Borrower immediately prior to such repurchase or substitution. In furtherance of the foregoing, upon a Specially Serviced Loan becoming a Corrected Mortgage Loan, the Special Servicer shall provide the Master Servicer with a calculation of the total amount of Workout Fees expected to be payable by the Trust with respect to such Corrected Mortgage Loan throughout its term (which calculation shall be reasonably acceptable to the Master Servicer) and the total amount of related Offsetting Modification Fees received by the Special Servicer.

 

Yield Maintenance Charge”: With respect to any Mortgage Loan or Serviced Companion Loan, the yield maintenance charge set forth in the related Loan Documents; provided that, amounts shall be considered Yield Maintenance Charges pursuant to the allocation set forth under Section 1.02(f) or Section 1.02(g), as applicable.

 

Section 1.02        Certain Calculations. Unless otherwise specified herein, the following provisions shall apply:

 

(a)                All calculations of interest with respect to the Mortgage Loans and Serviced Companion Loans (other than the Actual/360 Loans) and of Advances in respect thereof provided for herein shall be made on the basis of a 360-day year consisting of twelve 30-

 

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day months. All calculations of interest with respect to the Actual/360 Loans and of Advances provided in respect thereof provided for herein shall be made as set forth in the Loan Documents for such Mortgage Loans and, if applicable, Serviced Companion Loans, with respect to the calculation of the related Mortgage Rate. The Servicing Fee, the Certificate Administrator/Trustee Fee, the CREFC® Intellectual Property Royalty License Fee and the Operating Advisor Fee for each Mortgage Loan or Serviced Whole Loan, as applicable, shall accrue on the same basis as interest accrues on such Mortgage Loan or Serviced Whole Loan, as applicable.

 

(b)          Any Mortgage Loan or Serviced Whole Loan payment is deemed to be received on the date such payment is actually received by the Master Servicer or the Certificate Administrator; provided, that for purposes of calculating distributions on the Certificates, Principal Prepayments with respect to any Mortgage Loan or Serviced Whole Loan are deemed to be received on the date they are applied in accordance with Section 3.01(b) of this Agreement to reduce the Stated Principal Balance of such Mortgage Loan or Serviced Whole Loan on which interest accrues.

 

(c)          Except as otherwise provided in the related Loan Documents or Intercreditor Agreement, any amounts received in respect of a Mortgage Loan or Serviced Whole Loan as to which a default has occurred and is continuing in excess of Periodic Payments shall be applied to Default Interest and other amounts due on such Mortgage Loan or Serviced Whole Loan prior to the application to late fees.

 

(d)          Allocations of payments between a Mortgage Loan and the related Serviced Companion Loans in a Whole Loan shall be made in accordance with the related Intercreditor Agreement.

 

(e)          If an expense under this Agreement relates in the reasonable judgment of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Paying Agent, as applicable, primarily to the administration of the Trust Fund, any Trust REMIC or the Grantor Trust or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, or Grantor Trust tax or expense or this Agreement states that any expense is solely “an expense of the Trust Fund” or words of similar import, then such expense shall not be allocated to, deducted or reimbursed from, or otherwise charged against any Serviced Companion Loan Noteholder and such Serviced Companion Loan Noteholder shall not suffer any adverse consequences as a result of the payment of such expense.

 

(f)           All amounts collected by or on behalf of the Trust in respect of any Mortgage Loan (other than an REO Loan) in the form of payments from the related Borrower, Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds (exclusive, if applicable, in the case of a Mortgage Loan that is part of a Serviced Whole Loan, of any amounts payable to the holder of the related Serviced Companion Loan, pursuant to the related Intercreditor Agreement) shall be allocated to amounts due and owing under the related Loan Documents (including for principal and accrued and unpaid interest) in accordance with the express

 

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provisions of the related Loan Documents and, with respect to any Mortgage Loan that is part of a Serviced Whole Loan, the related Intercreditor Agreement; provided, that absent such express provisions, all such amounts collected (exclusive, if applicable, in the case of a Mortgage Loan that is part of a Serviced Whole Loan, of any amounts payable to the holder of the related Serviced Companion Loan pursuant to the related Intercreditor Agreement) shall be deemed to be allocated for purposes of collecting amounts due under the Mortgage Loan in the following order of priority:

 

(i)             as a recovery of any unreimbursed Advances (including any Workout-Delayed Reimbursement Amount) with respect to such Mortgage Loan and unpaid interest at the Reimbursement Rate on such Advances and, if applicable, unreimbursed and unpaid Additional Trust Fund Expenses with respect to such Mortgage Loan;

 

(ii)           as a recovery of Nonrecoverable Advances and any interest at the Reimbursement Rate thereon to the extent previously paid or reimbursed from principal collections on the Mortgage Loans (as described in the first proviso in the definition of Aggregate Principal Distribution Amount);

 

(iii)          to the extent not previously allocated pursuant to clause (i) above, as a recovery of accrued and unpaid interest on such Mortgage Loan (exclusive of Default Interest and Excess Interest) to the extent of the excess of (A) accrued and unpaid interest on such Mortgage Loan at the related Mortgage Rate in effect from time to time through the end of the applicable Mortgage Loan Interest Accrual Period, over (B) the sum of (x) the cumulative amount of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have theretofore occurred under Section 4.07(d) of this Agreement in connection with Appraisal Reduction Amounts (to the extent that collections have not been allocated as a recovery of accrued and unpaid interest pursuant to clause (v) below on earlier dates) and (y) Accrued AB Loan Interest;

 

(iv)          to the extent not previously allocated pursuant to clause (i) above, as a recovery of principal of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if such Mortgage Loan has been liquidated, as a recovery of principal to the extent of its entire remaining unpaid principal balance);

 

(v)           as a recovery of (i) accrued and unpaid interest on such Mortgage Loan to the extent of the cumulative amount of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have theretofore occurred under Section 4.07(d) of this Agreement in connection with related Appraisal Reduction Amounts and (ii) Accrued AB Loan Interest (in each of clause (i) and (ii), to the extent that collections have not been allocated as recovery of accrued and unpaid interest pursuant to this clause (v) on earlier dates);

 

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(vi)          as a recovery of amounts to be currently allocated to the payment of, or escrowed for the future payment of, real estate taxes, assessments and insurance premiums and similar items relating to such Mortgage Loan;

 

(vii)         as a recovery of any other reserves to the extent then required to be held in escrow with respect to such Mortgage Loan;

 

(viii)        as a recovery of any Yield Maintenance Charge or Prepayment Premium then due and owing under such Mortgage Loan;

 

(ix)           as a recovery of any late payment charges and Default Interest and Excess Interest then due and owing under such Mortgage Loan;

 

(x)            as a recovery of any Assumption Fees and Modification Fees then due and owing under such Mortgage Loan;

 

(xi)           as a recovery of any other amounts then due and owing under such Mortgage Loan other than remaining unpaid principal (if both consent fees and Operating Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Operating Advisor Consulting Fees);

 

(xii)          as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and

 

(xiii)         in the case of an ARD Loan after the related Anticipated Repayment Date, any accrued but unpaid Excess Interest.

 

provided that, to the extent required under the REMIC Provisions, payments or proceeds received (or receivable by exercise of the Mortgage Loan Seller’s rights under the related Loan Documents) with respect to any partial release of a Mortgaged Property (including in connection with a condemnation) at a time when the loan-to-value ratio of the related Mortgage Loan (or Serviced Whole Loan) exceeds 125% or would exceed 125% following any partial release (based solely on the value of real property and excluding personal property and going concern value, if any) must be collected and allocated to reduce the Stated Principal Balance of the Mortgage Loan (or Serviced Whole Loan) in the manner permitted by the REMIC Provisions.

 

(g)         Collections by or on behalf of the Trust in respect of any REO Property (exclusive of amounts to be allocated to the payment of the costs of operating, managing, leasing, maintaining and disposing of such REO Property and, if applicable, in the case of an REO Property related to a Serviced Whole Loan, exclusive of any amounts payable to the holder of the related Serviced Companion Loan pursuant to the related Intercreditor Agreement) shall be deemed to be allocated for purposes of collecting amounts due under the Mortgage Loan in the following order of priority:

 

(i)            as a recovery of any unreimbursed Advances (including any Workout-Delayed Reimbursement Amount) with respect to such Mortgage Loan and

 

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unpaid interest at the Reimbursement Rate on such Advances and, if applicable, unreimbursed and unpaid Additional Trust Fund Expenses with respect to such Mortgage Loan;

 

(ii)           as a recovery of Nonrecoverable Advances and any interest at the Reimbursement Rate thereon to the extent previously allocated to principal collections on the Mortgage Loans (as described in the first proviso in the definition of Aggregate Principal Distribution Amount);

 

(iii)          to the extent not previously allocated pursuant to clause (i) above, as a recovery of accrued and unpaid interest on the related Mortgage Loan (exclusive of Default Interest and Excess Interest) to the extent of the excess of (A) accrued and unpaid interest on such Mortgage Loan at the related Mortgage Rate in effect from time to time through the end of the applicable Mortgage Loan Interest Accrual Period, over (B) the sum of (x) the cumulative amount of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have theretofore occurred under Section 4.07(d) of this Agreement in connection with Appraisal Reduction Amounts (to the extent that collections have not been allocated as a recovery of accrued and unpaid interest pursuant to clause (v) below or clause (v) of Section 1.02(f) on earlier dates) and (y) Accrued AB Loan Interest;

 

(iv)          to the extent not previously allocated pursuant to clause (i)-(ii) above, as a recovery of principal of the related Mortgage Loan to the extent of its entire unpaid principal balance;

 

(v)           as a recovery of (i) accrued and unpaid interest on the related Mortgage Loan to the extent of the cumulative amount of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have theretofore occurred under Section 4.07(d) of this Agreement in connection with related Appraisal Reduction Amounts and (ii) Accrued AB Loan Interest (in each of clause (i) and (ii), to the extent that collections have not theretofore been allocated as a recovery of accrued and unpaid interest pursuant to this clause (v) or clause (v) of Section 1.02(f) on earlier dates);

 

(vi)          as a recovery of any Yield Maintenance Charge or Prepayment Premium then due and owing under the related Mortgage Loan;

 

(vii)         as a recovery of any late payment charges and Default Interest and Excess Interest then due and owing under the related Mortgage Loan;

 

(viii)        as a recovery of any Assumption Fees and Modification Fees then due and owing under the related Mortgage Loan;

 

(ix)           as a recovery of any other amounts then due and owing under the related Mortgage Loan other than remaining unpaid principal (if both consent fees and Operating Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Operating Advisor Consulting Fees); and

 

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(x)            in the case of an ARD Loan after the related Anticipated Repayment Date, any accrued but unpaid Excess Interest.

 

(h)          The applications of amounts received in respect of any Mortgage Loan pursuant to paragraph (f) of this Section 1.02 shall be determined by the Master Servicer in accordance with the Servicing Standard. The applications of amounts received in respect of any Mortgage Loan, or any REO Property pursuant to paragraph (g) of this Section 1.02 shall be determined by the Special Servicer in accordance with the Servicing Standard.

 

(i)           All net present value calculations and determinations made hereunder with respect to the Mortgage Loans or a Mortgaged Property or REO Property (including for purposes of the definition of “Servicing Standard”) shall be made in accordance with the Loan Documents or, if the Loan Documents are silent, using the Calculation Rate.

 

(j)           For purposes of calculations required herein, Excess Interest shall not be added to the outstanding principal balance of the Mortgage Loans notwithstanding that the related Loan Documents may provide otherwise.

 

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-2, Class A-3, Class A-SB, Class A-4, Class A-5, Class A-M, Class B, Class C, Class D, Class E-RR, Class F-RR, Class G-RR and Class H-RR Certificates. For purposes of this Agreement, 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. For purposes of this Agreement, the Excess Interest Certificates shall be outstanding so long as any ARD Loan is outstanding. For purposes of this Agreement, the Class R Certificates shall be outstanding so long as the Trust Fund has not been terminated pursuant to Section 9.01 of this Agreement or any other Class of Certificates remains outstanding. For purposes of this Agreement, 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 Special Servicer that is subject to the consent or approval of the Directing Holder, or consultation with the Directing Holder or the Operating Advisor, shall in each case be further subject to the determination by the Master Servicer or 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 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 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 Special Servicer determines that immediate

 

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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 Whole Loan with a related Subordinate Companion Loan, taking into account the subordinate nature of such Subordinate Companion Loan)), and the Master Servicer or Special Servicer, as applicable, has made a reasonable effort to contact the Directing Holder or the Operating Advisor, as applicable, it may take such action without waiting for a response from the Directing Holder or the Operating Advisor, as applicable; provided that the Special Servicer or Master Servicer, as applicable, shall provide the Directing Holder or the Operating Advisor, if applicable, with prompt written notice following such action including a reasonably detailed explanation of the basis for such action.

 

Section 1.04        Certain Matters Relating to the Non-Serviced Mortgage Loans. Each Other Servicer, Other Special Servicer, Other Depositor, Other Operating Advisor, Other Asset Representations Reviewer and Other Trustee, and any of their respective directors, officers, employees or agents (as and to the same extent the securitization trust formed under the related Other Pooling and Servicing Agreement is required to indemnify such parties in respect of other Mortgage Loans in the securitization trust formed under the related Other Pooling and Servicing Agreement pursuant to the terms of the Other Pooling and Servicing Agreement) and each Other Securitization (collectively, the “Other Indemnified Parties”), shall be indemnified by the Trust and held harmless against the Trust’s pro rata share (subject to the related Intercreditor Agreement) of any and all claims, losses, damages, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of or any actual or threatened legal action or claim relating to the related Non-Serviced Mortgage Loan (or, with respect to the Other Operating Advisor, incurred in connection with the provision of services for the related Non-Serviced Mortgage Loans) and the related non-serviced Mortgaged Property under the related Other Pooling and Servicing Agreement, this Agreement or the related Intercreditor Agreement (but excluding any such losses allocable to the related Companion Loans); provided that such indemnification will not extend to any losses, liabilities, costs or expenses: (i) specifically required to be borne by such party, without right of reimbursement, pursuant to the terms of the related Other Pooling and Servicing Agreement; (ii) incurred in connection with any legal action or claim against such party resulting from any breach of a representation or warranty made by such person under the related Other Pooling and Servicing Agreement or (iii) incurred in connection with any legal action or claim against such party resulting from any willful misfeasance, bad faith or negligence in the performance of such Person’s obligations and duties under the related Other Pooling and Servicing Agreement or the related Intercreditor Agreement or resulting from negligent disregard of such obligations and duties.

 

In connection with the securitization of any Serviced Companion Loan while it is a Serviced Companion Loan, upon the request of (and at the expense of) the related Companion Loan Noteholders, each of the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee, as applicable, shall use reasonable efforts to cooperate with such Companion Loan Noteholders in attempting to cause the related Borrower to provide information relating to the related Serviced Whole Loan and the related notes, and that such holders

 

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reasonably determine to be necessary or appropriate, for inclusion in any disclosure document(s) relating to such Other Securitization.

 

On each Servicing Shift Securitization Date (i) the Custodian shall, upon receipt of a Request for Release transfer the related Mortgage File (other than the note(s) designating the related Servicing Shift Mortgage Loan), the original of which shall be retained by the Custodian) for the related Servicing Shift Whole Loan to the related Other Trustee under the related Other Pooling and Servicing Agreement and retain a copy of such Mortgage File and (ii) the Master Servicer shall, upon receipt of notice from the applicable Mortgage Loan Seller or the holder of the applicable Controlling Companion Loan that the applicable Servicing Shift Lead Note has been or is being securitized on the related Servicing Shift Securitization Date, transfer (and cooperate with reasonable requests in connection with such transfer of) the Servicing File for the related Servicing Shift Whole Loan, and any Escrow Payments, reserve funds and originals of items specified in Sections 2.01(a)(xix) and (xx) for the related Servicing Shift Whole Loan, to the related Other Servicer on the related Servicing Shift Securitization Date.

 

Upon receipt of notice from the applicable Mortgage Loan Seller or the holder of the applicable Controlling Companion Loan that the applicable Servicing Shift Lead Note has been or is being securitized on the related Servicing Shift Securitization Date, the Master Servicer shall provide the Custodian with a Request for Release of the Mortgage File on the related Servicing Shift Securitization Date and transfer (and cooperate with reasonable requests in connection with such transfer of) the Servicing File to the related Other Servicer identified to it pursuant to the related notice from the related Mortgage Loan Seller on the related Servicing Shift Securitization Date.

 

Article II

CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES

 

Section 2.01        Conveyance of Mortgage Loans; Assignment of Mortgage Loan Purchase Agreements. (a)  The Depositor, concurrently with the execution and delivery hereof on the Closing Date, does hereby establish a trust designated as “CD 2017-CD6 Mortgage Trust,” appoint the Trustee as trustee of the Trust Fund and sell, transfer, assign, set over and otherwise convey to the Trustee without recourse (except to the extent herein provided) all the right, title and interest of the Depositor in and to the Mortgage Loans, including all rights to payment in respect thereof, except as set forth below, and any security interest thereunder (whether in real or personal property and whether tangible or intangible) in favor of the Depositor, and a security interest in all Reserve Accounts, Lock-Box Accounts, Cash Collateral Accounts and all other assets to the extent included or to be included in the Trust Fund for the benefit of the Certificateholders. Such transfer and assignment includes all interest and principal due on or with respect to the Mortgage Loans after the Cut-off Date and, in the case of a Mortgage Loan included in a Whole Loan, is subject to the related Intercreditor Agreement. Transfer and assignment of a Non-Serviced Mortgage Loan and the right to service a Non-Serviced Mortgage Loan is further subject to the terms and conditions of the Other Pooling and

 

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Servicing Agreement and the related Intercreditor Agreement. The Depositor, concurrently with the execution and delivery hereof, does also hereby transfer, assign, set over and otherwise convey to the Trustee without recourse (except to the extent provided herein), for the benefit of the Certificateholders and the Serviced Companion Loan Noteholders, all the right, title and interest of the Depositor in, to and under the Mortgage Loan Purchase Agreements as provided therein (excluding Sections 6(e) – (g) of each Mortgage Loan Purchase Agreement, the representations, warranties and covenants in favor of the Depositor set forth in clause (viii) of Section 4(b) of each Mortgage Loan Purchase Agreement and the Depositor’s rights and remedies with respect to a breach thereof, and excluding the Depositor’s rights and remedies under the Indemnification Agreements) to the extent related to any Mortgage Loan. The Depositor shall cause the Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts relating to the Mortgage Loans to be transferred to and held in the name of the Master Servicer on behalf of the Trustee as successor to the Mortgage Loan Sellers.

 

With respect to any Mortgage Loan that is subject to an Intercreditor Agreement, the parties hereto intend that the provisions of this Section 2.01(a) serve as an assignment and assumption agreement between the Depositor, as the assignor, and the Trustee on behalf of the Trust, as the assignee. Accordingly, the Depositor hereby (and in accordance with and subject to all other applicable provisions of this Agreement) assigns, grants, sells, transfers, delivers, sets over, and conveys to the Trustee all right, title and interest of the Depositor in, to and arising out of the related Intercreditor Agreement and the Trustee on behalf of the Trust hereby accepts (subject to applicable provisions of this Agreement) the foregoing assignment and assumes all of the rights and obligations of the Depositor with respect to related Intercreditor Agreement from and after the Closing Date. In addition, the Trustee acknowledges that any such Mortgage Loan that is a part of Serviced Whole Loan shall be serviced pursuant to the terms of this Agreement.

 

In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Custodian, with copies to the Master Servicer and the Special Servicer, the following documents or instruments with respect to each Mortgage Loan and each Serviced Companion Loan (which, except for the Mortgage Note referred to in clause (i) below, relate to the Serviced Whole Loan) so assigned (provided, the original of documents specified in clauses (xix) and (xx) shall be delivered to the Master Servicer):

 

(i)            (A) the original Mortgage Note, bearing, or accompanied by, all prior or intervening endorsements, endorsed by the most recent endorsee prior to the Trustee or, if none, by the Originator, without recourse, either in blank and further showing a complete, unbroken chain of endorsement from the Originator or to the order of the Trustee in the following form: “Pay to the order of Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CD 2017-CD6 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2017-CD6, without recourse”; and (B) in the case of each related Serviced Companion Loan, a copy of the executed Mortgage Note for such Serviced Companion Loan;

 

(ii)           (A) the original (or a copy thereof certified from the applicable recording office) of the Mortgage and, (B) if applicable, the originals (or copies thereof certified

 

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from the applicable recording office) 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 or copy (if the related Mortgage Loan Seller or its designee, rather than the Custodian and its designee, is responsible for the recording thereof) of an Assignment of Mortgage, in recordable form (except for missing recording information and, if delivered in blank, except for the name of the assignee), executed by the most recent assignee of record thereof prior to the Trustee or, if none, by the Originator, either in blank or in favor of the Trustee in the following form: “Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CD 2017-CD6 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2017-CD6” (in such capacity and, with respect to any Serviced Whole Loan, on behalf of any related Serviced Companion Loan Noteholders);

 

(iv)          (A) an original or copy of any related security agreement (if such item is a document separate from the Mortgage) and, if applicable, the originals or copies of any intervening assignments thereof showing a complete chain of assignment from the Originator of the related Mortgage Loan or Serviced Whole Loan to the most recent assignee thereof prior to the Trustee, if any; and (B) an original assignment of any related security agreement (if such item is a document separate from the related Mortgage) executed by the most recent assignee thereof prior to the Trustee or, if none, by the Originator, either in blank or in favor of the Trustee in the following form: “Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CD 2017-CD6 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2017-CD6” (in such capacity and, with respect to any Serviced Whole Loan, on behalf of any related Serviced Companion Loan Noteholders), which assignment may be included as part of the corresponding Assignment of Mortgage referred to in clause (iii) above;

 

(v)           (A) stamped or certified copies of any UCC financing statements and continuation statements which were filed in order to perfect (and maintain the perfection of) any security interest held by the Originator of the Mortgage Loan or Serviced Whole Loan (and each assignee of record prior to the Trustee) in and to the personalty of the Borrower at the Mortgaged Property (in each case with evidence of filing or recording thereon) and which were in the possession of the related Mortgage Loan Seller (or its agent) at the time the Mortgage Files were delivered to the Custodian, together with original UCC-3 assignments of financing statements showing a complete chain of assignment from the secured party named in such UCC-1 financing statement to the most recent assignee of record thereof prior to the Trustee, if any, and (B) if any such security interest is perfected and the earlier UCC financing statements and continuation statements were in the possession of the related Mortgage Loan Seller, an assignment of UCC financing statement by the most recent assignee of record prior to the Trustee or, if none, by the Originator, evidencing the transfer of such security interest, either in blank or in favor of the Trustee in the following form: “Wilmington Trust, National Association, as

 

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Trustee, for the benefit of the Holders of CD 2017-CD6 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2017-CD6” (in such capacity and, with respect to any Serviced Whole Loan, on behalf of any related Serviced Companion Loan Noteholders); provided that other evidence of filing or recording reasonably acceptable to the Trustee may be delivered in lieu of delivering such UCC financing statements including, without limitation, evidence of such filed or recorded UCC Financing Statement as shown on a written UCC search report from a reputable search firm, such as CSC/LexisNexis Document Solutions, Corporation Service Company, CT Corporation System and the like or printouts of on-line confirmations from such UCC filing or recording offices or authorized agents thereof;

 

(vi)          the original or a copy of the Loan Agreement relating to such Mortgage Loan, if any;

 

(vii)         the original or a copy of the lender’s title insurance policy issued in connection with the origination of the Mortgage Loan, together with all endorsements or riders (or copies thereof) that were issued with or subsequent to the issuance of such policy, insuring the priority of the Mortgage as a first lien on the Mortgaged Property, or, subject to Section 2(d) of the applicable Mortgage Loan Purchase Agreement, a “marked up” commitment to insure marked as binding and countersigned by the related insurer or its authorized agent (which may be a pro forma or specimen title insurance policy which has been accepted or approved as binding in writing by the related title insurance company), or, subject to Section 2(d) of the applicable Mortgage Loan Purchase Agreement, an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company;

 

(viii)        (A) the original or a copy of the related Assignment of Leases, Rents and Profits (if such item is a document separate from the Mortgage) and, if applicable, the originals or copies 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 thereon; and (B) an original or copy (if the related Mortgage Loan Seller or its designee, rather than the Custodian and its designee, is responsible for the recording thereof) of an assignment of any related Assignment of Leases, Rents and Profits (a “Reassignment of Assignment of Leases, Rents and Profits”) (if such item is a document separate from the Mortgage), in recordable form (except for missing recording information and, if delivered in blank, except for the name of the assignee), executed by the most recent assignee of record thereof prior to the Trustee or, if none, by the Originator, either in blank or in favor of the Trustee in the following form: “Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CD 2017-CD6 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2017-CD6” (in such capacity and, with respect to any Serviced Whole Loan, on behalf of any related Serviced Companion Loan Noteholders), which assignment may be included as part of the corresponding Assignment of Mortgage referred to in clause (iii) above;

 

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(ix)           the original or copy of any environmental indemnity agreements and copies of any environmental insurance policies pertaining to the related Mortgaged Property required in connection with origination of the related Mortgage Loan or Serviced Whole Loan and copies of Environmental Reports;

 

(x)            copies of the currently effective Management Agreements, if any, for the Mortgaged Properties;

 

(xi)           if the Borrower has a leasehold interest in the related Mortgaged Property, the original or copy of the ground lease (or, with respect to a leasehold interest where the Borrower is a lessee and that is a space lease or an air rights lease, the original of such space lease or air rights lease), and any related lessor estoppel or similar agreement or a copy thereof; if any;

 

(xii)          if the related assignment of contracts is separate from the Mortgage, the original executed version of such assignment of contracts and the assignment thereof, if any, to the Trustee;

 

(xiii)         if any related Lock-Box Agreement or Cash Collateral Account Agreement is separate from the Mortgage or Loan Agreement, a copy thereof; with respect to the Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts, if any, a stamped or certified copy of the UCC-1 financing statements, if any, submitted for filing with respect to the related mortgagee’s security interest in the Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts and all funds contained therein (and UCC-3 assignments of financing statements assigning such UCC-1 financing statements to the Trustee in the following form: “Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CD 2017-CD6 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2017-CD6” (in such capacity and, with respect to any Serviced Whole Loan, on behalf of any related Serviced Companion Loan Noteholders));

 

(xiv)         originals or copies of all assumption, modification, written assurance and substitution agreements, if any, with evidence of recording thereon if appropriate, in those instances where the terms or provisions of the Mortgage, the Mortgage Note or any related security document have been modified or the Mortgage Loan or Serviced Whole Loan has been assumed;

 

(xv)          the original or a copy of any guaranty of the obligations of the Borrower under the Mortgage Loan or Serviced Whole Loan together with, as applicable, (A) the original or copies of any intervening assignments of such guaranty showing a complete chain of assignment from the Originator of the Mortgage Loan or Serviced Whole Loan to the most recent assignee thereof prior to the Trustee, if any, and (B) an original assignment of such guaranty executed by the most recent assignee thereof prior to the Trustee or, if none, by the Originator;

 

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(xvi)         the original or a copy of the power of attorney (with evidence of recording thereon, if appropriate) granted by the related Borrower if the Mortgage, Mortgage Note or other document or instrument referred to above was signed on behalf of the Borrower pursuant to such power of attorney;

 

(xvii)        with respect to each Whole Loan, a copy of the related Intercreditor Agreement and, if applicable, a copy of the related Other Pooling and Servicing Agreement;

 

(xviii)       with respect to hospitality properties, a copy of the franchise agreement, if any, an original or copy of the comfort letter, if any, and if, pursuant to the terms of such comfort letter, the general assignment of the Mortgage Loan is not sufficient to transfer or assign the benefits of such comfort letter to the Trust, a copy of the notice to the franchisor of the transfer of such Mortgage Loan and/or a copy of the request for the issuance of a new comfort letter in favor of the Trust (in each case, as and to the extent required pursuant to the terms of such comfort letter), with the original of any replacement comfort letter to be included in the Mortgage File following receipt thereof by the Master Servicer;

 

(xix)         the original (or copy, if the original is held by the Master Servicer or applicable Other Servicer pursuant to Section 2.01(c) of this Agreement) of any letter of credit held by the lender as beneficiary or assigned as security for such Mortgage Loan or Serviced Whole Loan;

 

(xx)          the appropriate assignment or amendment documentation related to the assignment to the Trust of any letter of credit securing such Mortgage Loan or Serviced Whole Loan (or copy thereof, if the original is held by the Master Servicer or applicable Other Servicer pursuant to Section 2.01(c) of this Agreement) which entitles the Master Servicer on behalf of the Trust and the Companion Noteholders (with respect to any Serviced Whole Loan) to draw thereon;

 

(xxi)         with respect to any Mortgage Loan with related mezzanine debt or other subordinate debt (other than a Companion Loan), a copy of the related co-lender agreement, subordination agreement or other intercreditor agreement; and

 

(xxii)        The Gurnee Mills REMIC Declaration.

 

The original assignments referred to in clauses (iii), (iv)(B), (viii)(B) and (xv)(B), may be in the form of one or more instruments in recordable form in any applicable filing or recording offices.

 

Notwithstanding anything to the contrary contained in this Section 2.01(a) or in Section 2.01(b), Section 2.01(c) or Section 2.02, in connection with a Servicing Shift Whole Loan (1) instruments of assignment to the Trustee may be in blank and need not be recorded or filed pursuant to this Agreement until the earliest of (i) the related Servicing Shift Securitization Date, in which case such instruments shall be assigned and recorded in accordance with the related Other Pooling and Servicing Agreement, (ii) the date such Servicing Shift Whole Loan

 

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becomes a Specially Serviced Loan, in which case assignments and recordations shall be effected in accordance with this Section 2.01(a), and (iii) 180 days following the Closing Date, in which case assignments and recordations shall be effected in accordance with this Section 2.01(a), (2) no letter of credit need be amended (including, without limitation, to change the beneficiary thereon) until the earliest of (i) the related Servicing Shift Securitization Date, in which case such amendment shall be in accordance with the related Other Pooling and Servicing Agreement, (ii) the date such Servicing Shift Whole Loan becomes a Specially Serviced Loan prior to such Servicing Shift Securitization Date, in which case such amendment shall be effected in accordance with the terms of this Section 2.01, and (iii) 180 days following the Closing Date, in which case such amendment shall be effected in accordance with the terms of this Section 2.01, and (3) on and following such Servicing Shift Securitization Date, the Person selling the related Servicing Shift Lead Note to the related Other Depositor, at its own expense, shall be (a) entitled to direct in writing, which may be conclusively relied upon by the Custodian, the Custodian to deliver the originals of all the Loan Documents relating to such Servicing Shift Whole Loan in its possession (other than the original Note(s) evidencing such Servicing Shift Mortgage Loan) to the related Other Trustee or the related Other Custodian, (b) if the right under clause (a) is exercised, required to cause the retention by or delivery to the Custodian of photocopies of Loan Documents related to such Servicing Shift Whole Loan so delivered to such Other Trustee or such Other Custodian, (c) entitled to cause the completion (or, in the event of a recordation as contemplated by clause (1)(ii) of this paragraph, the preparation, execution and delivery) and recordation of instruments of assignment in the name of the related Other Trustee or related Other Custodian, (d) if the right under clause (c) is exercised, required to deliver to the Trustee or Custodian photocopies of any instruments of assignment so completed and recorded, and (e) entitled to require the Master Servicer to transfer, and to cooperate with all reasonable requests in connection with the transfer of, the Servicing File, and any Escrow Payments, reserve funds and items specified in clauses (xix) and (xx) of Section 2.01(a) for such Servicing Shift Whole Loan to the related Other Servicer.

 

With respect to Serviced Whole Loans, except for the Mortgage Note referred to in clause (i)(B) of the second preceding paragraph, only a single original set of the Loan Documents specified above is required to be delivered. Notwithstanding anything herein to the contrary, with respect to a Non-Serviced Mortgage Loan, any assignments or other transfer documents referred to in the third preceding paragraph as being in favor of the Trustee shall instead be in favor of the applicable Other Trustee and (1) if the Custodian is not also the related Non-Serviced Whole Loan Custodian, the preceding document delivery requirements will be met by the delivery by the applicable Mortgage Loan Seller to the Custodian of copies of the documents specified above (other than the Mortgage Note and intervening endorsements evidencing a Non-Serviced Mortgage Loan, with respect to which the originals shall be required), including a copy of the Mortgage securing the applicable Non-Serviced Mortgage Loan and copies of the companion notes or (2) if the Custodian is also the related Non-Serviced Whole Loan Custodian, the preceding document delivery requirements shall be met by the delivery by the Mortgage Loan Seller to the Custodian of only the original Mortgage Note and intervening endorsements evidencing such Non-Serviced Mortgage Loan (and, if any document specified in Section 2.01(a) of this Agreement was not required to be delivered in connection with the related Other Securitization, a copy of such document); provided that with respect to

 

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such Non-Serviced Mortgage Loan, if Wells Fargo Bank, National Association ceases to be Custodian with respect to such Non-Serviced Mortgage Loan, it shall, upon receipt of a request for release, provide the original note, allonge and intercreditor agreement and copies of all other Loan Documents specified above to the successor Custodian.

 

With respect to the Mortgage Loans, within 45 days after the Closing Date or, without limiting the requirements of the third paragraph of Section 2.01(b), after such later date on which the Mortgage Loan Seller has received all the missing recording/filing information, each Mortgage Loan Seller will, or will at the expense of such Mortgage Loan Seller retain a third party vendor to, except in the case of any Mortgage Loan that is a Non-Serviced Mortgage Loan, (1) complete (to the extent necessary) and submit for recording in favor of the Trustee in the following form: “Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CD 2017-CD6 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Series 2017-CD6” (and with respect to a Serviced Whole Loan, the related Serviced Companion Loan Noteholders) in the appropriate public recording office (a) each Assignment of Mortgage referred to in Section 2.01(a)(iii) which has not yet been submitted for recording and (b) each Reassignment of Assignment of Leases, Rents and Profits referred to in Section 2.01(a)(viii)(B) (if not otherwise included in the related Assignment of Mortgage) which has not yet been submitted for recordation; and (2) complete (to the extent necessary) and file in the appropriate public filing office each UCC assignment of financing statement referred to in Section 2.01(a)(v)(B) and (xiii) which has not yet been submitted for filing or recording. Each such document shall reflect that the recorded original should be returned by the public recording office to the Custodian or its designee (or to the Mortgage Loan Seller or its designee as an alternative) following recording, and each such document shall reflect that the file copy thereof should be returned to the Custodian or its designee (or to the Mortgage Loan Seller or its designee as an alternative) following filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage or Reassignment of Assignment of Leases, Rents and Profits, the Custodian shall use commercially reasonable efforts to obtain therefrom a certified copy of the recorded original, at the expense of the Depositor. In the event that any such document or instrument in respect of any Mortgage Loan is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, the related Mortgage Loan Seller shall promptly prepare or cause the preparation of a substitute thereof or cure or cause the curing of such defect, as the case may be, and shall thereafter deliver the substitute or corrected document to or at the direction of the Custodian or such other third party vendor as retained by the Mortgage Loan Seller for recording or filing, as appropriate, at such Mortgage Loan Seller’s expense (as set forth in the related Mortgage Loan Purchase Agreement). In the event that any Mortgage Loan Seller receives the original recorded or filed copy, each Mortgage Loan Seller will, promptly upon receipt of the original recorded or filed copy (and in no event later than five Business Days following such receipt) deliver such original to the Custodian, with evidence of filing or recording thereon. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains the original Mortgage, Assignment of Mortgage, Assignment of Leases, Rents and Profits or Reassignment of Assignment of Leases, Rents and Profits, if applicable, after any has been recorded, the obligations of the related Mortgage Loan Seller under the applicable Mortgage Loan Purchase Agreement shall be deemed to have been satisfied upon delivery to the Custodian of a copy of

 

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the recorded original of such Mortgage, Assignment of Mortgage, Assignment of Leases, Rents and Profits or Reassignment of Assignment of Leases, Rents and Profits, if applicable.

 

If a Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, the original or a copy of the related lender’s title insurance policy referred to in Section 2.01(a)(vii) solely because such policy has not yet been issued, the delivery requirements of this Section 2.01 will be deemed to be satisfied as to such missing item, and such missing item will be deemed to have been included in the related Mortgage File by delivery to the Custodian of a binder marked as binding and countersigned by the title insurer or its authorized agent (which may be a pro forma or specimen title insurance policy which has been accepted or approved as binding in writing by the related title insurance company) or an acknowledged closing instruction or escrow letter, and the Mortgage Loan Seller will be required to deliver to the Custodian, promptly following the receipt thereof, the original related lender’s title insurance policy (or a copy thereof). Copies of recorded or filed Assignments of Mortgage, Reassignments of Assignment of Leases, Rents and Profits and UCC assignments of financing statements shall be held by the Custodian.

 

Subject to the third preceding paragraph, all original documents relating to the Mortgage Loans which are not delivered to the Custodian are and shall be held by the Depositor or the Master Servicer (or a sub-servicer on its behalf), as the case may be, in trust for the benefit of the Certificateholders and, insofar as they also relate to the Serviced Companion Loans, on behalf of and for the benefit of the related Serviced Companion Loan Noteholders. In the event that any such original document, or in the case of a Serviced Companion Loan, the original Mortgage Note, is required pursuant to the terms of this Section to be a part of a Mortgage File in order to effectuate the purposes of this Agreement, such document shall be delivered promptly to the Custodian.

 

(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, each of 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, (i) the Custodian, on or before the Closing Date, subject to Section 2.01(a), for each Mortgage Loan so assigned the Mortgage Note (or a copy of the Mortgage Note evidencing each related Serviced Companion Loan), the original or a copy of the related Mortgage, the original or a copy of the title policy for each Mortgage Loan (subject to the second-to-last paragraph under Section 2.01(a)), a copy of the related ground lease (or, with respect to a leasehold interest with respect to a space lease or air rights, a copy of the related space lease or air rights lease), if applicable, for each Mortgage Loan and an original (or copy, if the original is held by the Master Servicer pursuant to Section 2.01(c) or the Mortgage Loan is a Non-Serviced Mortgage Loan) of any letters of credit held by the lender as beneficiary or assigned as security for the Mortgage Loan, and, except as otherwise provided in the following paragraph, within 30 days following the Closing Date, the remaining applicable documents referred to in Section 2.01(a) for each such Mortgage Loan or Serviced Companion Loan, in each case, with copies to the Master Servicer and (ii) the Master Servicer, on or before the Closing Date, all documents and records that are part of each applicable Servicing File. 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, such Mortgage Loan Seller shall deliver a copy or duplicate original of such Mortgage Note, together with an affidavit certifying that the original thereof has been lost or destroyed and an indemnification in favor of the Certificate Administrator, the Trustee and the Custodian.

 

If the applicable Mortgage Loan Seller or the Depositor cannot deliver, or cause to be delivered, as to any Mortgage Loan (subject to any qualifications provided for herein or in the related Mortgage Loan Purchase Agreement with respect to a Non-Serviced Mortgage Loan), the original or a copy of any of the documents and/or instruments referred to in Section 2.01(a)(ii), Section 2.01(a)(iii), Section 2.01(a)(v), Section 2.01(a)(viii), Section 2.01(a)(xiv) and Section 2.01(a)(xvi) and the UCC financing statements and UCC assignments of financing statements referred to in Section 2.01(a)(xiii), with evidence of recording or filing thereon, solely because of a delay caused by the public recording or filing office where such document or instrument has been delivered for recordation or filing, or because such original recorded or filed document has been lost or returned from the recording or filing office and subsequently lost, as the case may be, the delivery requirements of Section 2.01 shall be deemed to have been satisfied as to such missing item, and such missing item shall be deemed to have been included in the related Mortgage File, provided that a copy of such document or instrument (without evidence of recording or filing thereon, but certified (which certificate may relate to multiple documents and/or instruments) by the applicable public recording or filing office, the applicable title insurance company or the related Mortgage Loan Seller to be a true and complete copy of the original thereof submitted for recording or filing, as the case may be) has been delivered to the Custodian within 60 days after the Closing Date, and either the original of such missing document or instrument, or a copy thereof, with evidence of recording or filing, as the case may be, thereon, is delivered to the Custodian within 180 days after the Closing Date (or within such longer period after the Closing Date so long as the related Mortgage Loan Seller has provided the Custodian with evidence of such recording or filing, as the case may be, or has certified to the Custodian as to the occurrence of such recording or filing, as the case may be, and is, as certified to the Custodian no less often than quarterly, in good faith attempting to obtain from the appropriate county recorder’s or filing office such original or copy, provided such extensions do not exceed 24 months in the aggregate).

 

(c)          Notwithstanding anything herein to the contrary, with respect to the documents referred to in Section 2.01(a)(xix) and Section 2.01(a)(xx) of this Agreement, the Master Servicer shall hold (or the applicable Other Servicer with respect to any Non-Serviced Mortgage Loan will hold) the original of each such document in trust on behalf of the Trust (or the applicable Other Trust with respect to any Non-Serviced Mortgage Loan) in order to draw on such letter of credit on behalf of the Trust (or the applicable Other Trust with respect to any Non-Serviced Mortgage Loan) 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 of this Agreement by delivering the original of each such document to the Master Servicer (or the applicable Other Servicer with respect to any Non-Serviced Mortgage Loan) who shall forward a copy of the applicable document to the Custodian (or the custodian in the applicable Other Securitization with respect to any Non-Serviced Mortgage Loan). The applicable Mortgage Loan Seller shall pay any costs of assignment or amendment of such letter

 

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of credit (which amendment shall change the beneficiary of the letter of credit to the Trust (or the applicable Other Trust with respect to any Non-Serviced Mortgage Loan) in care of the Master Servicer (or the applicable Other Servicer with respect to any Non-Serviced Mortgage Loan)) required in order for the Master Servicer (or the applicable Other Servicer with respect to any Non-Serviced Mortgage Loan) to draw on such letter of credit on behalf of the Trust (or the applicable Other Trust with respect to any Non-Serviced Mortgage Loan). In the event that the documents specified in Section 2.01(a)(xx) of this Agreement are missing with respect to any Serviced Mortgage Loan because the related assignment or amendment documents have not been completed, the applicable Mortgage Loan Seller shall take all necessary steps to enable the Master Servicer to draw on the related letter of credit on behalf of the Trust including, if necessary, drawing on the letter of credit in its own name pursuant to written instructions from the Master Servicer and immediately remitting such funds (or causing such funds to be remitted) to the Master Servicer.

 

(d)          With respect to the Serviced Mortgage Loans secured by the Mortgaged Properties identified with ID Nos. 4 (Homewood Suites Savannah), 6.01 (Hampton Inn & Suites Ft. Myers Beach), 6.02 (aLoft Rogers Bentonville), 6.03 (Residence Inn Baton Rouge Siegen Lane), 6.04 (Courtyard Baton Rouge Siegen Lane), 6.05 (TownePlace Suites New Orleans Metairie), 6.06 (Fairfield Inn & Suites Jonesboro), 6.06 (TownePlace Suite Fayetteville North Springdale), 12.01 (TownePlace Suites West Valley City), 12.02 (Staybridge Suites Midvale), 12.03 (Fairfield Inn & Suites Midvale), 20 (Hampton Inn Majestic Chicago), 30 (Hampton Inn & Suites Las Vegas), 41 (Hampton Inn Hilton Head) and 45 (Holiday Inn & Suites Albuquerque Airport) on the Mortgage Loan Schedule, each of which is subject to a franchise agreement with a related comfort letter in favor of the respective Mortgage Loan Seller that requires notice to or request of the related franchisor to transfer or assign any related comfort letter to the Trust or otherwise have a new comfort letter issued in the name of the Trust, the related Mortgage Loan Seller or its designee will be required to provide any such required notice or make any such required request to the related franchisor, with a copy of such notice or request to the Master Servicer and the Special Servicer, or take any such other required action, in any event, within 45 days of the Closing Date (or any shorter period if required by the applicable comfort letter), notify the related franchisor that such Mortgage Loan has been transferred to the Trust and request a replacement comfort letter (or any such new document or acknowledgement as may be contemplated under the existing comfort letter), and the Master Servicer shall use reasonable efforts in accordance with the Servicing Standard to acquire such replacement comfort letter, if necessary (or to acquire any such new document or acknowledgement as may be contemplated under the existing comfort letter).

 

(e)          Each Mortgage Loan Purchase Agreement shall provide that within 60 days after the Closing Date, each Mortgage Loan Seller shall deliver or cause to be delivered an electronic copy of the Diligence File for each of its Mortgage Loans to (or as instructed by) the Depositor, together with an index identifying each such document delivered, each such Diligence File being organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and the related Mortgage Loan Seller. Each Mortgage Loan Purchase Agreement shall further provide that within 60 days after the Closing Date, the applicable Mortgage Loan Seller shall provide to the Depositor (together with copies (which may be sent by

 

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electronic mail) to the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator and the Asset Representations Reviewer) with a certificate stating that (i) the applicable Mortgage Loan Seller has delivered or caused to be delivered an electronic copy of the Diligence File for each of its Mortgage Loans, (ii) the Diligence File contains all documents and information required under the definition of “Diligence File” and (iii) the Diligence File is organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and the related Mortgage Loan Seller (the “Diligence File Certification”).

 

(f)           Within 3 Business Days of the Closing Date, the Depositor shall deliver to the Master Servicer the