Contract

Exhibit 4.1

 

 

 WELLS FARGO COMMERCIAL MORTGAGE SECURITIES, INC.,
as Depositor

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as General Master Servicer

 

C-III ASSET MANAGEMENT LLC,
as General Special Servicer

 

NATIONAL COOPERATIVE BANK, N.A.,
as NCB Master Servicer and as NCB Special Servicer

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Administrator

 

WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee,

 

and

 

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

 

 

 

POOLING AND SERVICING AGREEMENT

 

Dated as of November 1, 2016

 

 

 

Commercial Mortgage Pass-Through Certificates
Series 2016-C36

 

 

 

 

 

TABLE OF CONTENTS

 

Page

 

ARTICLE I

DEFINITIONS
Section 1.01                Defined Terms 8
Section 1.02                Certain Calculations 138
ARTICLE II

CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01                Conveyance of Mortgage Loans 139
Section 2.02                Acceptance by Trustee 147
Section 2.03                Representations, Warranties and Covenants of the Depositor; Mortgage Loan Sellers’ Repurchase or Substitution of Mortgage Loans for Defects in Mortgage Files and Breaches of Representations and Warranties 152
Section 2.04                Execution of Certificates; Issuance of Lower-Tier Regular Interests 168
Section 2.05                Creation of the Grantor Trust 168
ARTICLE III

ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01                The Master Servicers to Act as Master Servicers; Special Servicers to Act as Special Servicers; Administration of the Mortgage Loans, the Serviced Companion Loans, and REO Properties 169
Section 3.02                Collection of Mortgage Loan Payments 178
Section 3.03                Collection of Taxes, Assessments and Similar Items; Servicing Accounts 183
Section 3.04                The Collection Accounts, the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Companion Distribution Account, the Interest Reserve Account and the Gain-on-Sale Reserve Account, the Class E Distribution Account, the Class F Distribution Account, the Class G Distribution Account and the Class H Distribution Account 188
Section 3.05                Permitted Withdrawals from the Collection Accounts, the Distribution Accounts and the Companion Distribution Account 196
Section 3.06                Investment of Funds in the Collection Accounts and the REO Account 207
Section 3.07                Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage 209
Section 3.08                Enforcement of Due-on-Sale Clauses; Assumption Agreements 214
Section 3.09                Realization Upon Defaulted Loans and Companion Loans 218
Section 3.10                Trustee and Certificate Administrator to Cooperate; Release of Mortgage Files 222
Section 3.11                Servicing Compensation 224

 

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Section 3.12                Inspections; Collection of Financial Statements 230
Section 3.13                Access to Certain Information 236
Section 3.14                Title to REO Property; REO Account 248
Section 3.15                Management of REO Property 250
Section 3.16                Sale of Defaulted Loans and REO Properties 252
Section 3.17                Additional Obligations of Master Servicers and Special Servicers 259
Section 3.18                Modifications, Waivers, Amendments and Consents 262
Section 3.19                Transfer of Servicing Between Master Servicers and Special Servicers; Recordkeeping; Asset Status Report 273
Section 3.20                Sub-Servicing Agreements 279
Section 3.21                Interest Reserve Account 283
Section 3.22                Directing Certificateholder and Operating Advisor Contact with Master Servicers and Special Servicers 283
Section 3.23                Controlling Class Certificateholders and Directing Certificateholder; Certain Rights and Powers of Directing Certificateholder 283
Section 3.24                Intercreditor Agreements 289
Section 3.25                Rating Agency Confirmation 291
Section 3.26                The Operating Advisor 293
Section 3.27                Companion Paying Agent 301
Section 3.28                Serviced Companion Noteholder Register 302
Section 3.29                Certain Matters Relating to the Non-Serviced Mortgage Loans and the Serviced Pari Passu Companion Loans 302
Section 3.30                [RESERVED] 305
Section 3.31                [RESERVED] 305
Section 3.32                Litigation Control 305
Section 3.33                Delivery of Excluded Information to the Certificate Administrator 308
ARTICLE IV

DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01                Distributions 309
Section 4.02                Distribution Date Statements; CREFC® Investor Reporting Packages; Grant of Power of Attorney 323
Section 4.03                P&I Advances 329
Section 4.04                Allocation of Realized Losses 333
Section 4.05                Appraisal Reduction Amounts; Collateral Deficiency Amounts 335
Section 4.06                Grantor Trust Reporting 340
Section 4.07                Investor Q&A Forum; Investor Registry; and Rating Agency Q&A Forum and Document Request Tool 341
Section 4.08                Secure Data Room 344
ARTICLE V

THE CERTIFICATES
Section 5.01                The Certificates 346
Section 5.02                Form and Registration 346

 

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Section 5.03                Registration of Transfer and Exchange of Certificates 349
Section 5.04                Mutilated, Destroyed, Lost or Stolen Certificates 357
Section 5.05                Persons Deemed Owners 357
Section 5.06                Access to List of Certificateholders’ Names and Addresses; Special Notices 357
Section 5.07                Maintenance of Office or Agency 358
Section 5.08                Appointment of Certificate Administrator 359
Section 5.09                Exchanges of Exchangeable Certificates and Exchangeable Combined Certificates 359
Section 5.10                Voting Procedures 364
ARTICLE VI

THE DEPOSITOR, THE MASTER SERVICERS, THE SPECIAL SERVICERS, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER AND THE DIRECTING CERTIFICATEHOLDER
Section 6.01                Representations, Warranties and Covenants of the Master Servicers, Special Servicers, the Operating Advisor and the Asset Representations Reviewer 366
Section 6.02                Liability of the Depositor, the Master Servicers, the Operating Advisor, the Special Servicers and the Asset Representations Reviewer 372
Section 6.03                Merger, Consolidation or Conversion of the Depositor, the Master Servicers, the Operating Advisor, the Special Servicers or the Asset Representations Reviewer 372
Section 6.04                Limitation on Liability of the Depositor, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer and Others 374
Section 6.05                Depositor, Master Servicers and Special Servicers Not to Resign 380
Section 6.06                Rights of the Depositor in Respect of the Master Servicers and the Special Servicers 381
Section 6.07                The Master Servicers and the Special Servicers as Certificate Owner 381
Section 6.08                The Directing Certificateholder 381
ARTICLE VII

SERVICER TERMINATION EVENTS
Section 7.01                Servicer Termination Events; Master Servicers and Special Servicers Termination 388
Section 7.02                Trustee to Act; Appointment of Successor 397
Section 7.03                Notification to Certificateholders 399
Section 7.04                Waiver of Servicer Termination Events 399
Section 7.05                Trustee as Maker of Advances 399
ARTICLE VIII

CONCERNING THE TRUSTEE AND THE CERTIFICATE ADMINISTRATOR

 

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Section 8.01                Duties of the Trustee and the Certificate Administrator 400
Section 8.02                Certain Matters Affecting the Trustee and the Certificate Administrator 402
Section 8.03                Trustee and Certificate Administrator Not Liable for Validity or Sufficiency of Certificates or Mortgage Loans 404
Section 8.04                Trustee or Certificate Administrator May Own Certificates 404
Section 8.05                Fees and Expenses of Trustee and Certificate Administrator; Indemnification of Trustee and Certificate Administrator 405
Section 8.06                Eligibility Requirements for Trustee and Certificate Administrator 406
Section 8.07                Resignation and Removal of the Trustee and Certificate Administrator 407
Section 8.08                Successor Trustee or Certificate Administrator 409
Section 8.09                Merger or Consolidation of Trustee or Certificate Administrator 410
Section 8.10                Appointment of Co-Trustee or Separate Trustee 410
Section 8.11                Appointment of Custodians 412
Section 8.12                Representations and Warranties of the Trustee 412
Section 8.13                Provision of Information to Certificate Administrator, Master Servicers and Special Servicers 413
Section 8.14                Representations and Warranties of the Certificate Administrator 413
Section 8.15                Compliance with the PATRIOT Act 415
ARTICLE IX

TERMINATION
Section 9.01                Termination upon Repurchase or Liquidation of All Mortgage Loans 415
Section 9.02                Additional Termination Requirements 419
ARTICLE X

ADDITIONAL REMIC PROVISIONS
Section 10.01              REMIC Administration 420
Section 10.02              Use of Agents 424
Section 10.03              Depositor, Master Servicers and Special Servicers to Cooperate with Certificate Administrator 424
Section 10.04              Appointment of REMIC Administrators 424
ARTICLE XI

EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01              Intent of the Parties; Reasonableness 425
Section 11.02              Succession; Subcontractors 426
Section 11.03              Filing Obligations 428
Section 11.04              Form 10-D Filings 429
Section 11.05              Form 10-K Filings 432
Section 11.06              Sarbanes-Oxley Certification 435
Section 11.07              Form 8-K Filings 437
Section 11.08              Form 15 Filing 439
Section 11.09              Annual Compliance Statements 439

 

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Section 11.10              Annual Reports on Assessment of Compliance with Servicing Criteria 441
Section 11.11              Annual Independent Public Accountants’ Attestation Report 443
Section 11.12              Indemnification 444
Section 11.13              Amendments 447
Section 11.14              Regulation AB Notices 447
Section 11.15              Certain Matters Relating to the Future Securitization of the Serviced Pari Passu Companion Loans 447
Section 11.16              [RESERVED] 451
Section 11.17              Impact of Cure Period 453
ARTICLE XII

THE ASSET REPRESENTATIONS REVIEWER
Section 12.01              Asset Review 453
Section 12.02              Payment of Asset Representations Reviewer Fees and Expenses; Limitation of Liability 459
Section 12.03              Resignation of the Asset Representations Reviewer 460
Section 12.04              Restrictions of the Asset Representations Reviewer 461
Section 12.05              Termination of the Asset Representations Reviewer 461
ARTICLE XIII

MISCELLANEOUS PROVISIONS
Section 13.01              Amendment 464
Section 13.02              Recordation of Agreement; Counterparts 469
Section 13.03              Limitation on Rights of Certificateholders 469
Section 13.04              Governing Law; Submission to Jurisdiction; Waiver of Jury Trial 470
Section 13.05              Notices 471
Section 13.06              Severability of Provisions 477
Section 13.07              Grant of a Security Interest 478
Section 13.08              Successors and Assigns; Third Party Beneficiaries 478
Section 13.09              Article and Section Headings 479
Section 13.10              Notices to the Rating Agencies 479

 

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EXHIBITS

   
EXHIBIT A-1 Form of Certificate (other than Class R Certificates)
EXHIBIT A-2 Form of Class R Certificate
EXHIBIT B Mortgage Loan Schedule
EXHIBIT C Form of Investment Representation Letter
EXHIBIT D-1 Form of Transferee Affidavit for Transfers of Class R Certificates
EXHIBIT D-2 Form of Transferor Letter for Transfers of Class R Certificates
EXHIBIT E Form of Request for Release
EXHIBIT F-1 Form of ERISA Representation Letter regarding ERISA Restricted Certificates
EXHIBIT F-2 Form of ERISA Representation Letter regarding Class R Certificates
EXHIBIT G Form of Distribution Date Statement
EXHIBIT H Form of Omnibus Assignment
EXHIBIT I Form of Transfer Certificate for Rule 144A Book-Entry Certificate to Temporary Regulation S Book-Entry Certificate during Restricted Period
EXHIBIT J Form of Transfer Certificate for Rule 144A Book-Entry Certificate to Regulation S Book-Entry Certificate after Restricted Period
EXHIBIT K Form of Transfer Certificate for Temporary Regulation S Book-Entry Certificate to Rule 144A Book-Entry Certificate during Restricted Period
EXHIBIT L Form of Transfer Certificate for Temporary Regulation S Book-Entry Certificate to Regulation S Book-Entry Certificate after Restricted Period
EXHIBIT M Form of Transfer Certificate for Non-Book Entry Certificate to Temporary Regulation S Book-Entry Certificate
EXHIBIT N Form of Transfer Certificate for Non-Book Entry Certificate to Regulation S Book-Entry Certificate
EXHIBIT O Form of Transfer Certificate for Non-Book Entry Certificate to Rule 144A Book-Entry Certificate
EXHIBIT P-1A Form of Investor Certification for Non-Borrower Party (for Persons other than the Directing Certificateholder and/or a Controlling Class Certificateholder)
EXHIBIT P-1B Form of Investor Certification for Non-Borrower Party (for the Directing Certificateholder and/or a Controlling Class Certificateholder)
EXHIBIT P-1C Form of Investor Certification for Borrower Party (for Persons other than the Directing Certificateholder and/or a Controlling Class Certificateholder)
EXHIBIT P-1D Form of Investor Certification for Borrower Party (for the Directing Certificateholder and/or a Controlling Class Certificateholder)
EXHIBIT P-1E Form of Notice of Excluded Controlling Class Holder
EXHIBIT P-1F Form of Notice of [Excluded Loan] [Excluded Controlling Class Holder] to Certificate Administrator
EXHIBIT P-1G Form of Certification of the Directing Certificateholder
EXHIBIT P-2 Form of Certification for NRSROs
EXHIBIT P-3 Online Market Data Provider Certification
EXHIBIT Q Custodian Certification/Exception Report
EXHIBIT R-1 Form of Power of Attorney – Master Servicers
EXHIBIT R-2 Form of Power of Attorney – Special Servicers

 

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EXHIBIT S Initial Serviced Companion Noteholders
EXHIBIT T Form of Notice Relating to the Non-Serviced Mortgage Loan
EXHIBIT U Form of Notice and Certification Regarding Defeasance of Mortgage Loan
EXHIBIT V Form of Operating Advisor Annual Report
EXHIBIT W Form of Notice from Operating Advisor Recommending Replacement of [General] [NCB] Special Servicer
EXHIBIT X Form of Confidentiality Agreement
EXHIBIT Y Form Certification to be Provided with Form 10-K
EXHIBIT Z-1 Form of Certification to be Provided to Depositor by Certificate Administrator
EXHIBIT Z-2 Form of Certification to be Provided to Depositor by Master Servicer
EXHIBIT Z-3 Form of Certification to be Provided to Depositor by Special Servicer
EXHIBIT Z-4 Form of Certification to be Provided to Depositor by Trustee
EXHIBIT Z-5 Form of Certification to be Provided to Depositor by Operating Advisor
EXHIBIT Z-6 Form of Certification to be Provided to Depositor by Custodian
EXHIBIT Z-7 Form of Certification to be Provided to Depositor by Asset Representations Reviewer
EXHIBIT AA Servicing Criteria to be Addressed in Assessment of Compliance
EXHIBIT BB Additional Form 10-D Disclosure
EXHIBIT CC Additional Form 10-K Disclosure
EXHIBIT DD Form 8-K Disclosure Information
EXHIBIT EE Additional Disclosure Notification
EXHIBIT FF Initial Sub-Servicers
EXHIBIT GG Servicing Function Participants
EXHIBIT HH Form of Annual Compliance Statement
EXHIBIT II Form of Report on Assessment of Compliance with Servicing Criteria
EXHIBIT JJ CREFC® Payment Information
EXHIBIT KK Form of Notice of Additional Indebtedness Notification
EXHIBIT LL Form of Intercreditor Agreement and Subordination Agreement for NCB Co-op Mortgage Loans
EXHIBIT MM Additional Disclosure Notification (Accounts)
EXHIBIT NN Form of Notice of Purchase of Controlling Class Certificate
EXHIBIT OO Form of Asset Review Report by the Asset Representations Reviewer
EXHIBIT PP Form of Asset Review Report Summary
EXHIBIT QQ Asset Review Procedures
EXHIBIT RR Form of Certification to Certificate Administrator Requesting Access to Secure Data Room
EXHIBIT SS Form of Notice of [Additional Delinquent Loan][Cessation of Delinquent Loan][Cessation of Asset Review Trigger]
   
SCHEDULES  
   
SCHEDULE 1 Mortgage Loans With Additional Debt
SCHEDULE 2 Class A-SB Planned Principal Balance Schedule
SCHEDULE 3 Mortgage Loans (Other than NCB Co-Op Mortgage Loans) With “Performance”, “Earn-Out” or “Holdback” Escrows or Reserves exceeding 10% of the Initial Principal Balance

 

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This Pooling and Servicing Agreement is dated and effective as of November 1, 2016, among Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, C-III Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer.

 

PRELIMINARY STATEMENT:

 

The Depositor intends to sell commercial mortgage pass-through certificates (collectively, the “Certificates”), to be issued hereunder in multiple classes (each, a “Class”), which in the aggregate will evidence the entire beneficial ownership interest in the Trust to be created hereunder, the primary assets of which will be a pool of commercial mortgage loans. As provided herein, the Certificate Administrator shall elect or shall cause an election to be made to treat designated portions of the Trust (exclusive of the Trust Components and the proceeds thereof in the related Distribution Accounts) for federal income tax purposes as two separate real estate mortgage investment conduits (the “Upper-Tier REMIC” and the “Lower-Tier REMIC”, and each a “Trust REMIC” as described herein).

 

In addition, the parties intend that the portion of the Trust Fund consisting of the Class E Specific Grantor Trust Assets, the Class E-1 Specific Grantor Trust Assets, the Class E-2 Specific Grantor Trust Assets, the Class F Specific Grantor Trust Assets, the Class F-1 Specific Grantor Trust Assets, the Class F-2 Specific Grantor Trust Assets, the Class EF Specific Grantor Trust Assets, the Class G-1 Specific Grantor Trust Assets, the Class G-2 Specific Grantor Trust Assets, the Class G Specific Grantor Trust Assets, the Class EFG Specific Grantor Trust Assets, the Class H-1 Specific Grantor Trust Assets, the Class H-2 Specific Grantor Trust Assets and the Class H Specific Grantor Trust Assets, if any, shall be treated as a grantor trust under subpart E, part I of subchapter J of the Code for federal income tax purposes (the “Grantor Trust”). Solely for tax purposes, the Class E Certificates will represent undivided beneficial interests in the Class E Specific Grantor Trust Assets, the Class E-1 Certificates will represent undivided beneficial interests in the Class E-1 Specific Grantor Trust Assets, the Class E-2 Certificates will represent undivided beneficial interests in the Class E-2 Specific Grantor Trust Assets, the Class F Certificates will represent undivided beneficial interests in the Class F Specific Grantor Trust Assets, the Class F-1 Certificates will represent undivided beneficial interests in the Class F-1 Specific Grantor Trust Assets, the Class F-2 Certificates will represent undivided beneficial interests in the Class F-2 Specific Grantor Trust Assets, the Class EF Certificates will represent undivided beneficial interests in the Class EF Specific Grantor Trust Assets, the Class G Certificates will represent undivided beneficial interests in the Class G Specific Grantor Trust Assets, the Class G-1 Certificates will represent undivided beneficial interests in the Class G-1 Specific Grantor Trust Assets, the Class G-2 Certificates will represent undivided beneficial interests in the Class G-2 Specific Grantor Trust Assets, the Class EFG Certificates will represent undivided beneficial interests in the Class EFG Specific Grantor Trust Assets, the Class H Certificates will represent undivided beneficial interests in the Class H Specific Grantor Trust Assets, the Class H-1 Certificates will represent undivided beneficial interests in the Class H-1 Specific Grantor Trust Assets and the Class H-2 Certificates will represent undivided beneficial interests in the Class H-2 Specific Grantor Trust Assets. As provided herein, the Certificate

 

 

 

 

Administrator shall take all actions expressly required hereunder to ensure that the portion of the Trust Fund consisting of the Grantor Trust maintains its status as a grantor trust under federal income tax law and not be treated as part of either Trust REMIC.

 

The Depositor intends to sell the Certificates to the Underwriters and the Initial Purchasers.

 

LOWER-TIER REMIC

 

The Lower-Tier REMIC will hold the Mortgage Loans and will issue the Class LA1, Class LA2, Class LA3, Class LA4, Class LASB, Class LAS, Class LB, Class LC, Class LD, Class LE1, Class LE2, Class LF1, Class LF2, Class LG1, Class LG2, Class LH1 and Class LH2 Uncertificated Interests (the “Lower-Tier Regular Interests”), which will evidence the “regular interests” in the Lower-Tier REMIC created hereunder. The Lower-Tier REMIC will also issue the uncertificated Class LR Interest, which is the sole Class of “residual interests” in the Lower-Tier REMIC for purposes of the REMIC Provisions and is represented by the Class R Certificates.

 

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

 

Class Designation 

 

Interest Rate 

 

Original Lower-Tier Principal Amount 

Class LA1   (1)   $41,947,000  
Class LA2   (1)   $39,657,000  
Class LA3   (1)   $220,000,000  
Class LA4   (1)   $250,203,000  
Class LASB   (1)   $48,917,000  
Class LAS   (1)   $77,236,000  
Class LB   (1)   $42,909,000  
Class LC   (1)   $36,473,000  
Class LD   (1)   $41,836,000  
Class LE1   (1)   $9,118,000  
Class LE2   (1)   $9,118,000  
Class LF1   (1)   $4,291,000  
Class LF2   (1)   $4,291,000  
Class LG1   (1)   $6,098,000  
Class LG2   (1)   $6,098,000  
Class LH1   (1)   $9,992,979  
Class LH2   (1)   $9,992,979  
Class LR   None(2)   None
           
 
(1)The interest rate for each Class of Lower-Tier Regular Interests on any Distribution Date will be the Weighted Average Net Mortgage Rate for such Distribution Date.

 

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

 

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UPPER-TIER REMIC

 

The Upper-Tier REMIC will hold the Lower-Tier Regular Interests and will issue the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class A-S, Class X-A, Class X-B, Class X-D, Class B, Class C and Class D Certificates and the Class E Trust Components, Class F Trust Components, Class G Trust Components and Class H Trust Components, each of which is a “regular interest” in the Upper-Tier REMIC created hereunder. The Upper-Tier REMIC also will issue the uncertificated Class UR Interest, which is the sole Class of “residual interests” in the Upper-Tier REMIC for purposes of the REMIC Provisions and is represented by the Class R Certificates.

 

THE GRANTOR TRUST

 

The Class E-1, Class E-2, Class E, Class F-1, Class F-2, Class F, Class EF, Class G-1, Class G-2, Class G, Class EFG, Class H-1, Class H-2 and Class H Certificates shall each represent undivided beneficial interests in the portion of the Grantor Trust consisting of the assets set forth opposite such Class in the following table, in each case as described herein. As provided herein, the Certificate Administrator shall not take any actions that would cause the portion of the Trust Fund consisting of the Grantor Trust (i) to fail to maintain its status as a “grantor trust” under federal income tax law or (ii) to be treated as part of any Trust REMIC.

 

Class Designation   Corresponding Grantor Trust Assets
Class E-1   Class E-1 Specific Grantor Trust Assets
Class E-2   Class E-2 Specific Grantor Trust Assets
Class E   Class E Specific Grantor Trust Assets
Class F-1   Class F-1 Specific Grantor Trust Assets
Class F-2   Class F-2 Specific Grantor Trust Assets
Class F   Class F Specific Grantor Trust Assets
Class EF   Class EF Specific Grantor Trust Assets
Class G-1   Class G-1 Specific Grantor Trust Assets
Class G-2   Class G-2 Specific Grantor Trust Assets
Class G   Class G Specific Grantor Trust Assets
Class EFG   Class EFG Specific Grantor Trust Assets
Class H-1   Class H-1 Specific Grantor Trust Assets
Class H-2   Class H-2 Specific Grantor Trust Assets
Class H   Class H Specific Grantor Trust Assets

 -3-

 

 

THE CERTIFICATES

 

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

 

Class of Certificates 

 

Initial Pass-
Through Rate 

 

Original Certificate
Balance or Notional
Amount* 

Class A-1 Certificates   1.4530%     $41,947,000  
Class A-2 Certificates   2.5040%     $39,657,000  
Class A-3 Certificates   2.8070%     $220,000,000  
Class A-4 Certificates   3.0650%     $250,203,000  
Class A-SB Certificates   2.9330%     $48,917,000  
Class A-S Certificates   3.4190%     $77,236,000  
Class X-A Certificates   1.3822% (1)   $600,724,000 (2)
Class X-B Certificates   0.6834% (1)   $120,145,000 (2)
Class X-D Certificates   1.2504% (1)   $41,836,000 (2)
Class B Certificates   3.6710%     $42,909,000  
Class C Certificates   4.1924%    

$36,473,000

 
Class D Certificates   2.9420%     $41,836,000  
Class E-1 Certificates and Class E-1 Trust Component   4.1924%     $9,118,000 (3)
Class E-2 Certificates and Class E-2 Trust Component   4.1924%     $9,118,000 (4)
Class E Certificates   N/A(5)     $18,236,000  
Class F-1 Certificates and Class F-1 Trust Component   4.1924%     $4,291,000 (6)
Class F-2 Certificates and Class F-2 Trust Component   4.1924%     $4,291,000 (7)
Class F Certificates   N/A(8)     $8,582,000  
Class EF Certificates   N/A(9)     $26,818,000  
Class G-1 Certificates and Class G-1 Trust Component   4.1924%     $6,098,000 (10)
Class G-2 Certificates and Class G-2 Trust Component   4.1924%     $6,098,000 (11)
Class G Certificates   N/A(12)     $12,196,000  
Class EFG Certificates   N/A(13)     $39,014,00  
Class H-1 Certificates and Class H-1 Trust Component   4.1924%     $9,992,979 (14)
Class H-2 Certificates and Class H-2 Trust Component   4.1924%     $9,992,979 (15)
Class H Certificates   N/A(16)     $19,985,958  
Class R Certificates   None(17)     N/A  
             
 
*In the case of any Class of Exchangeable Certificates, the amount shown represents the maximum possible initial certificate balance of such class assuming that no related Exchangeable Combined Certificates representing an interest in the related Trust Component is issued. In the case of any Class of Exchangeable Combined Certificates, the amount shown represents the maximum possible initial certificate balance of such

 

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class assuming that no related Exchangeable Certificates are issued and that no other class(es) of Exchangeable Combined Certificates representing an interest in the related ‎Trust Component(s) are issued. The actual initial Certificate Balances of each Class of Exchangeable Certificates and Exchangeable Combined Certificates are set forth in table entitled “Approximate Closing Date Certificate Balance of Exchangeable Certificates or Exchangeable Combination Certificates” in Section 5.09(a).

 

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

 

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

 

(3)The Original Certificate Balance of the Class E-1 Trust Component will be $9,118,000 as provided in Section 5.09(a), and will at all times equal the aggregate of the Certificate Balances of the Class E Component E-1, the Class E-1 Component, the Class EF Component E-1 and the Class EFG Component E-1.

 

(4)The Original Certificate Balance of the Class E-2 Trust Component will be $9,118,000 as provided in Section 5.09(a), and will at all times equal the aggregate of the Certificate Balances of the Class E Component E-2, the Class E-2 Component, the Class EF Component E-2 and the Class EFG Component E-2.

 

(5)The Class E Certificates will not have a Pass-Through Rate, but will be entitled to receive the sum of interest distributable on the Class E Components.

 

(6)The Original Certificate Balance of the Class F-1 Trust Component will be $4,291,000 as provided in Section 5.09(a), and will at all times equal the aggregate of the Certificate Balances of the Class F Component F-1, the Class F-1 Component, the Class EF Component F-1 and the Class EFG Component F-1.

 

(7)The Original Certificate Balance of the Class F-2 Trust Component will be $4,291,000 as provided in Section 5.09(a), and will at all times equal the aggregate of the Certificate Balances of the Class F Component F-2, the Class F-2 Component, the Class EF Component F-2 and the Class EFG Component F-2.

 

(8)The Class F Certificates will not have a Pass-Through Rate, but will be entitled to receive the sum of interest distributable on the Class F Components.

 

(9)The Class EF Certificates will not have a Pass-Through Rate, but will be entitled to receive the sum of interest distributable on the Class EF Components.

 

(10)The Original Certificate Balance of the Class G-1 Trust Component will be $6,098,000 as provided in Section 5.09(a), and will at all times equal the aggregate of the Certificate Balances of the Class G Component G-1, the Class G-1 Component and the Class EFG Component G-1.

 

(11)The Original Certificate Balance of the Class G-2 Trust Component will be $6,098,000 as provided in Section 5.09(a), and will at all times equal the aggregate of the Certificate Balances of the Class G Component G-2, the Class G-2 Component and the Class EFG Component G-2.

 

(12)The Class G Certificates will not have a Pass-Through Rate, but will be entitled to receive the sum of interest distributable on the Class G Components.

 

(13)The Class EFG Certificates will not have a Pass-Through Rate, but will be entitled to receive the sum of interest distributable on the Class EFG Components.

 

(14)The Original Certificate Balance of the Class H-1 Trust Component will be $9,992,979 as provided in Section 5.09(a), and will at all times equal the aggregate of the Certificate Balances of the Class H Component H-1 and the Class H-1 Component.

 

(15)The Original Certificate Balance of the Class H-2 Trust Component will be $9,992,979 as provided in Section 5.09(a), and will at all times equal the aggregate of the Certificate Balances of the Class H Component H-2 and the Class H-2 Component.

 

(16)The Class H Certificates are not regular interests in the Upper-Tier REMIC, but represent ownership of the Class H Components. The Class H Certificates will not have a Pass-Through Rate, but will be entitled to receive the sum of interest distributable on the Class H Components.

 

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(17)The Class R Certificates will not have a Certificate Balance or a Notional Amount, bear interest or be entitled to distributions of Prepayment Premiums or Yield Maintenance Charges. Any Available Funds remaining in the Upper-Tier REMIC Distribution Account, after all required distributions under this Agreement have been made to each Class of Regular Certificates will be deemed distributed to the Class UR Interest and shall be payable to the Holders of the Class R Certificates.

 

As of the close of business on the Cut-off Date, the Mortgage Loans had an aggregate principal balance, after application of all payments of principal due on or before such date, whether or not received, equal to $858,177,959.

 

Each of the Easton Town Center Pari Passu Companion Loans, the Easton Town Center Subordinate Companion Loans, the Gas Company Tower & World Center Parking Garage Pari Passu Companion Loans, the Gas Company Tower & World Center Parking Garage Subordinate Companion Loans, the Plaza America I & II Pari Passu Companion Loan, the Conrad Indianapolis Pari Passu Companion Loan, the Mall at Turtle Creek Pari Passu Companion Loan, the One & Two Corporate Plaza Pari Passu Companion Loan, the Central Park Retail Pari Passu Companion Loan, the Gurnee Mills Pari Passu Companion Loans, the 101 Hudson Street Pari Passu Companion Loans and any AB Subordinate Companion Loan (each a “Companion Loan” and collectively, the “Companion Loans”) are not part of the Trust Fund, but are each secured by the applicable Mortgage that secures the related Mortgage Loan that is part of the Trust Fund. As and to the extent provided herein, any Companion Loan (other than any Non-Serviced Companion Loan) will be serviced and administered in accordance with this Agreement. Amounts attributable to any Companion Loan will not be part of the Trust Fund, and (except to the extent that such amounts are payable or reimbursable to any party to this Agreement) will be owned by the related Companion Holders.

 

The Easton Town Center Whole Loan consists of the Easton Town Center Mortgage Loan, the Easton Town Center Park Pari Passu Companion Loans and the Easton Town Center Subordinate Companion Loans. The Easton Town Center Mortgage Loan and the Easton Town Center Pari Passu Companion Loans are pari passu with each other, and the Easton Town Center Subordinate Companion Loans are generally subordinate to the Easton Town Center Mortgage Loan and the Easton Town Center Park Pari Passu Companion Loans. The Easton Town Center Mortgage Loan is part of the Trust Fund. The Easton Town Center Pari Passu Companion Loans and the Easton Town Center Subordinate Companion Loans are not part of the Trust Fund. The Easton Town Center Mortgage Loan, the Easton Town Center Pari Passu Companion Loans and the Easton Town Center Subordinate Companion Loans will be serviced and administered in accordance with BBCMS 2016-ETC Trust and Servicing Agreement and the Easton Town Center Intercreditor Agreement.

 

The Gas Company Tower & World Center Parking Garage Whole Loan consists of the Gas Company Tower & World Center Parking Garage Mortgage Loan, the Gas Company Tower & World Center Parking Garage Park Pari Passu Companion Loans and the Gas Company Tower & World Center Parking Garage Subordinate Companion Loans. The Gas Company Tower & World Center Parking Garage Mortgage Loan and the Gas Company Tower & World Center Parking Garage Pari Passu Companion Loans are pari passu with each other, and the Gas Company Tower & World Center Parking Garage Subordinate Companion Loans are generally subordinate to the Gas Company Tower & World Center Parking Garage Mortgage Loan and the Gas Company Tower & World Center Parking Garage Pari Passu Companion

 

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Loans. The Gas Company Tower & World Center Parking Garage Mortgage Loan is part of the Trust Fund. The Gas Company Tower & World Center Parking Garage Pari Passu Companion Loans and the Gas Company Tower & World Center Parking Garage Subordinate Companion Loans are not part of the Trust Fund. The Gas Company Tower & World Center Parking Garage Mortgage Loan, the Gas Company Tower & World Center Parking Garage Pari Passu Companion Loans and the Gas Company Tower & World Center Parking Garage Subordinate Companion Loans will be serviced and administered in accordance with COMM 2016-GCT Trust and Servicing Agreement and the Gas Company Tower & World Center Parking Garage Intercreditor Agreement.

 

The Plaza America I & II Whole Loan consists of the Plaza America I & II Mortgage Loan and the Plaza America I & II Pari Passu Companion Loan. The Plaza America I & II Mortgage Loan and the Plaza America I & II Pari Passu Companion Loan are pari passu with each other. The Plaza America I & II Mortgage Loan is part of the Trust Fund. The Plaza America I & II Pari Passu Companion Loan is not part of the Trust Fund. The Plaza America I & II Mortgage Loan and the Plaza America I & II Pari Passu Companion Loan will be serviced and administered in accordance with this Agreement and the Plaza America I & II Intercreditor Agreement.

 

The Conrad Indianapolis Whole Loan consists of the Conrad Indianapolis Mortgage Loan and the Conrad Indianapolis Pari Passu Companion Loan. The Conrad Indianapolis Mortgage Loan and the Conrad Indianapolis Pari Passu Companion Loan are pari passu with each other. The Conrad Indianapolis Mortgage Loan is part of the Trust Fund. The Conrad Indianapolis Pari Passu Companion Loan is not part of the Trust Fund. The Conrad Indianapolis Mortgage Loan and the Conrad Indianapolis Pari Passu Companion Loan will be serviced and administered in accordance with this Agreement and the Conrad Indianapolis Intercreditor Agreement.

 

The Mall at Turtle Creek Whole Loan consists of the Mall at Turtle Creek Mortgage Loan and the Mall at Turtle Creek Pari Passu Companion Loan. The Mall at Turtle Creek Mortgage Loan and the Mall at Turtle Creek Pari Passu Companion Loan are pari passu with each other. The Mall at Turtle Creek Mortgage Loan is part of the Trust Fund. The Mall at Turtle Creek Pari Passu Companion Loan is not part of the Trust Fund. The Mall at Turtle Creek Mortgage Loan and the Mall at Turtle Creek Pari Passu Companion Loan will be serviced and administered in accordance with WFCM 2016-C35 Pooling and Servicing Agreement and the Mall at Turtle Creek Intercreditor Agreement.

 

The One & Two Corporate Plaza Whole Loan consists of the One & Two Corporate Plaza Mortgage Loan and the One & Two Corporate Plaza Pari Passu Companion Loan. The One & Two Corporate Plaza Mortgage Loan and the One & Two Corporate Plaza Pari Passu Companion Loan are pari passu with each other. The One & Two Corporate Plaza Mortgage Loan is part of the Trust Fund. The One & Two Corporate Plaza Pari Passu Companion Loan is not part of the Trust Fund. The One & Two Corporate Plaza Mortgage Loan and the One & Two Corporate Plaza Pari Passu Companion Loan will be serviced and administered in accordance with WFCM 2016-LC24 Pooling and Servicing Agreement and the One & Two Corporate Plaza Intercreditor Agreement.

 

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The Central Park Retail Whole Loan consists of the Central Park Retail Mortgage Loan and the Central Park Retail Pari Passu Companion Loan. The Central Park Retail Mortgage Loan and the Central Park Retail Pari Passu Companion Loan are pari passu with each other. The Central Park Retail Mortgage Loan is part of the Trust Fund. The Central Park Retail Pari Passu Companion Loan is not part of the Trust Fund. The Central Park Retail Mortgage Loan and the Central Park Retail Pari Passu Companion Loan will be serviced and administered in accordance with WFCM 2016-LC24 Pooling and Servicing Agreement and the Central Park Retail Intercreditor Agreement.

 

The Gurnee Mills Whole Loan consists of the Gurnee Mills Mortgage Loan and the Gurnee Mills Pari Passu Companion Loans. The Gurnee Mills Mortgage Loan and the Gurnee Mills Pari Passu Companion Loans are pari passu with each other. The Gurnee Mills Mortgage Loan is part of the Trust Fund. The Gurnee Mills Pari Passu Companion Loans are not part of the Trust Fund. The Gurnee Mills Mortgage Loan and the Gurnee Mills Pari Passu Companion Loans will be serviced and administered (a) from and after the Closing Date and prior to the related Servicing Shift Securitization Date, pursuant to (i) this Agreement and (ii) the Gurnee Mills Intercreditor Agreement and (b) from and after the related Servicing Shift Securitization Date, pursuant to (i) the Non-Serviced PSA involving the Gurnee Mills Pari Passu Note A-1A and (ii) the Gurnee Mills Intercreditor Agreement.

 

The 101 Hudson Street Whole Loan consists of the 101 Hudson Street Mortgage Loan and the 101 Hudson Street Pari Passu Companion Loans. The 101 Hudson Street Mortgage Loan and the 101 Hudson Street Pari Passu Companion Loans are pari passu with each other. The 101 Hudson Street Mortgage Loan is part of the Trust Fund. The 101 Hudson Street Pari Passu Companion Loans are not part of the Trust Fund. The 101 Hudson Street Mortgage Loan and the 101 Hudson Street Pari Passu Companion Loans will be serviced and administered (a) from and after the Closing Date and prior to the related Servicing Shift Securitization Date, pursuant to (i) this Agreement and (ii) the 101 Hudson Street Intercreditor Agreement and (b) from and after the related Servicing Shift Securitization Date, pursuant to (i) the Non-Serviced PSA involving the 101 Hudson Street Pari Passu Note A-1-1 and (ii) the 101 Hudson Street Intercreditor Agreement.

 

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

 

Article I

DEFINITIONS

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

101 Hudson Street Intercreditor Agreement”: That certain Agreement Between Note Holders, dated as of November 3, 2016, by and between the holders of each of the 101 Hudson Street Pari Passu Companion Loans and the holder of the 101 Hudson Street Mortgage Loan, relating to the relative rights of such holders of the 101 Hudson Street Whole Loan, as the same may be further amended in accordance with the terms thereof.

 

101 Hudson Street Mortgage Loan”: With respect to the 101 Hudson Street Whole Loan, the Mortgage Loan that is included in the Trust Fund (identified as Mortgage Loan 2 on the Mortgage Loan Schedule), which is designated as promissory note A-2, and is generally pari passu in right of payment with the 101 Hudson Street Pari Passu Companion Loans to the extent set forth in the 101 Hudson Street Intercreditor Agreement.

 

101 Hudson Street Mortgaged Property”: The Mortgaged Property that secures the 101 Hudson Street Whole Loan.

 

101 Hudson Street Pari Passu Companion Loans”: With respect to the 101 Hudson Street Whole Loan, the Companion Loans evidenced by the related promissory notes designated as promissory notes A-1-1, A-1-2, A-3 A-4 and A-5 made by the related Mortgagor and secured by the Mortgage on the 101 Hudson Street Mortgaged Property, which are not included in the Trust Fund and which are generally pari passu in right of payment to the 101 Hudson Street Mortgage Loan to the extent set forth in the related Mortgage Loan documents and as provided in the 101 Hudson Street Intercreditor Agreement.

 

101 Hudson Street Pari Passu Note A-1-1”: The 101 Hudson Street Pari Passu Companion Loan evidenced by the related promissory note designated as promissory note A-1-1. As of the Closing Date, the 101 Hudson Street Pari Passu Note A-1-1 is held by Wells Fargo Bank, National Association.

 

101 Hudson Street Pooling and Servicing Agreement”: This Agreement, for so long as the 101 Hudson Street Whole Loan is serviced pursuant to this Agreement and, on and after the related Servicing Shift Securitization Date, the related Non-Serviced PSA for the 101 Hudson Street Pari Passu Note A-1-1.

 

101 Hudson Street Whole Loan”: The 101 Hudson Street Mortgage Loan, together with the 101 Hudson Street Pari Passu Companion Loans, each of which is secured by the same Mortgage on the 101 Hudson Street Mortgaged Property. References herein to the 101 Hudson Street Whole Loan shall be construed to refer to the aggregate indebtedness under the 101 Hudson Street Mortgage Loan and the 101 Hudson Street Pari Passu Companion Loans.

 

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AB Control Appraisal Period”: With respect to any AB Subordinate Companion Loan, the period during which (a)(i) the initial principal balance of such AB Subordinate Companion Loan minus (ii) the sum of (x) any payments of principal allocated to, and received on, such AB Subordinate Companion Loan, (y) any Appraisal Reduction Amounts for the related AB Whole Loan that are allocated to such AB Subordinate Companion Loan and (z) any losses realized with respect to the related Mortgaged Property or AB Whole Loan that are allocated to such AB Subordinate Companion Loan, is less than (b) 25% of the remainder of the (i) initial principal balance of such AB Subordinate Companion Loan less (ii) any payments of principal allocated to, and received by, the holders of such AB Subordinate Companion Loan. With respect to any AB Whole Loan, the period during which the holder of the related AB Subordinate Companion Loan is the AB Whole Loan Controlling Holder.

 

AB Intercreditor Agreement”: Any Intercreditor Agreement by and among the holder of an AB Subordinate Companion Loan and the holder of the related Mortgage Loan, relating to the relative rights of such holders of the related AB Whole Loan, as the same may be further amended in accordance with the terms thereof. For the avoidance of doubt, there is no AB Intercreditor Agreement under this Agreement.

 

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

 

AB Mortgage Loan”: A senior “A note” that is part of an AB Whole Loan and which is a Mortgage Loan that is part of the Trust Fund. For the avoidance of doubt, there is no AB Mortgage Loan under this Agreement.

 

AB Mortgaged Property”: The Mortgaged Property which secures the related AB Whole Loan.

 

AB Subordinate Companion Loan”: With respect to any AB Whole Loan, the related companion loan evidenced by the related promissory note made by the related Mortgagor and secured by the Mortgage on the related AB Mortgaged Property, which is not included in the Trust Fund and which is subordinate in right of payment to the related AB Mortgage Loan to the extent set forth in the related Mortgage Loan documents and as provided in the related Intercreditor Agreement. For the avoidance of doubt, there is no AB Subordinate Companion Loan under this Agreement.

 

AB Whole Loan”: A Serviced Whole Loan that consists of a Mortgage Loan and a related AB Subordinate Companion Loan. For the avoidance of doubt, there is no AB Whole Loan under this Agreement.

 

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AB Whole Loan Controlling Holder”: The “Directing Lender” or similarly defined party identified in the related AB Intercreditor Agreement. For the avoidance of doubt, there is no AB Whole Loan Controlling Holder under this Agreement.

 

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

 

Acceptable Insurance Default”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Whole Loan, a default under the related Mortgage Loan documents arising by reason of (i) any failure on the part of the related Mortgagor to maintain with respect to the related Mortgaged Property specific insurance coverage with respect to, or an all-risk casualty insurance policy that does not specifically exclude, terrorist or similar acts, and/or (ii) any failure on the part of the related Mortgagor to maintain with respect to the related Mortgaged Property insurance coverage with respect to damages or casualties caused by terrorist or similar acts upon terms not materially less favorable than those in place as of the Closing Date, in each case as to which default the applicable Master Servicer and the applicable Special Servicer may forbear taking any enforcement action, provided that the Special Servicer has determined, in its reasonable judgment, based on inquiry consistent with the Servicing Standard and (unless a Control Termination Event has occurred and is continuing (or other than with respect to any Excluded Loan), with the consent of the Directing Certificateholder (and after a Control Termination Event has occurred, but prior to the occurrence of a Consultation Termination Event (or other than with respect to any Excluded Loan), after consultation with the Directing Certificateholder as provided in Section 6.08 hereof)) (or, with respect to a Serviced AB Whole Loan, and prior to any related AB Control Appraisal Period, with the consent of the related AB Whole Loan Controlling Holder to the extent required under the related Intercreditor Agreement), that either (a) such insurance is not available at commercially reasonable rates and that such hazards are not at the time commonly insured against for properties similar to the related Mortgaged Property and located in or around the region in which such related Mortgaged Property is located, or (b) such insurance is not available at any rate; provided, however, that the Directing Certificateholder (or, with respect to a Serviced AB Whole Loan, the AB Whole Loan Controlling Holder prior to any AB Control Appraisal Period to the extent required under the related Intercreditor Agreement) will not have more than thirty (30) days to respond to the Special Servicer’s request for such consent or consultation; provided, further, that upon the Special Servicer’s determination, consistent with the Servicing Standard, that exigent circumstances do not allow the Special Servicer to consult with the Directing Certificateholder or any applicable AB Whole Loan Controlling Holder, as applicable, the Special Servicer is not required to do so. The applicable Master Servicer (at its own expense) and the applicable Special Servicer (at the expense of the Trust Fund) shall be entitled to rely on insurance consultants in making the determinations described above.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Affected Reporting Party”: As defined in Section 11.12.

 

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.

 

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

 

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

 

Anticipated Repayment Date”: With respect to any ARD Loan, the date upon which such ARD Loan commences accruing interest at the Revised Rate.

 

Applicable Laws”: As defined in Section 8.15.

 

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 (b) such other state or local tax laws whose applicability shall have been brought to the attention of the Trustee and the Certificate Administrator by either (i) an Opinion of Counsel delivered to it, or (ii) written notice from the appropriate taxing authority as to the applicability of such state or local tax laws.

 

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

 

Appraisal Reduction Amount”: For any Distribution Date and for any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan, or Serviced Whole Loan as to which any Appraisal Reduction Event has occurred, will be an amount, calculated by the applicable Special Servicer (prior to the occurrence of a Consultation Termination Event and only with respect to any Mortgage Loan or Whole Loan other than an Excluded Loan) in consultation with the Directing Certificateholder, and, after the occurrence and during the continuance of a Control Termination Event, in consultation with the Directing Certificateholder (only with respect to a Mortgage Loan or Whole Loan other than an Excluded Loan) and the Operating Advisor and, after the occurrence and during the continuance of a Consultation Termination Event, in consultation with the Operating Advisor), as of the first Determination Date that is at least ten (10) Business Days following the date on which the applicable Special Servicer receives an Appraisal (together with information requested by the applicable Special Servicer from the applicable Master Servicer in accordance with this Agreement reasonably necessary to calculate the Appraisal Reduction Amount) or conducts a valuation described below, equal to the excess of (a) the Stated Principal Balance of that Mortgage Loan or the Stated Principal Balance of the applicable 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 applicable Special Servicer with respect to any Mortgage Loan (together with any other Mortgage Loan cross-collateralized with such Mortgage Loan) or Serviced Whole Loan, as the case may be, with an outstanding principal balance equal to or in excess of $2,000,000 (the costs of which shall be

 

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paid by the applicable Master Servicer as an Advance) or (2) by an internal valuation performed by the applicable Special Servicer (or at the applicable Special Servicer’s election, by one or more MAI appraisals obtained by such Special Servicer) with respect to any Mortgage Loan (together with any other Mortgage Loan cross collateralized with such Mortgage Loan) or Serviced Whole Loan, as the case may be, with an outstanding principal balance less than $2,000,000, minus, with respect to any Appraisals, such downward adjustments as the applicable Special Servicer may make (without implying any obligation to do so) based upon its review of the Appraisal and any other information it deems relevant; provided that, in the case of an NCB Co-op Mortgage Loan, such Appraised Value shall be determined (I) except as provided in clause (II) below, in the case of each Mortgaged Property, assuming such Mortgaged Property is operated as a residential cooperative with such value, in general, to equal the sum of (x) the gross share value of all cooperative units in such Mortgage Loan (applying a discount for units that are subject to existing rent regulated or rent controlled rental tenants as and if deemed appropriate by the appraiser), based in part on various comparable sales of cooperative apartment units in the market, plus (y) the amount of the underlying debt encumbering such residential cooperative property, and (II) if the applicable Special Servicer determines, in accordance with the Servicing Standard, that there is no reasonable expectation that the related Mortgaged Property will be operated as a residential cooperative following any work-out or liquidation of the related Mortgage Loan, assuming such Mortgaged Property is operated as a multifamily rental property and (B) all escrows, letters of credit and reserves in respect of such Mortgage Loan or Serviced Whole Loan, as applicable, as of the date of calculation over (ii) the sum of, as of the Due Date occurring in the month of the date of determination, (A) to the extent not previously advanced by the applicable Master Servicer or the Trustee, all unpaid interest due on such Mortgage Loan or Serviced Whole Loan, as the case may be, at a per annum rate equal to its Mortgage Rate (and, with respect to any AB Whole Loan, any accrued and unpaid interest on the related AB Subordinate Companion Loan, as applicable), (B) all P&I Advances on the related Mortgage Loan and all Servicing Advances on the related Mortgage Loan or Serviced Whole Loan, as applicable, not reimbursed from proceeds of such Mortgage Loan or Serviced Whole Loan, as applicable, and interest thereon at the Reimbursement Rate in respect of such Mortgage Loan or Serviced Whole Loan, as applicable, and (C) all currently due and unpaid real estate taxes, assessments, insurance premiums, ground rents, unpaid Special Servicing Fees and all other amounts due and unpaid (including any capitalized interest whether or not then due and payable) with respect to such Mortgage Loan or Serviced Whole Loan, as the case may be (which taxes, premiums, ground rents and other amounts have not been the subject of an Advance by the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable); provided, however, that without limiting the applicable Special Servicer’s obligation to order and obtain such Appraisal or perform such valuation, if the applicable Special Servicer has not obtained an Appraisal or performed such valuation, as applicable, referred to above within sixty (60) days of the Appraisal Reduction Event (or with respect to the Appraisal Reduction Events set forth in clauses (i) and (vi) of the definition of Appraisal Reduction Event, within one hundred twenty (120) days (in the case of clause (i)) or ninety (90) days or one hundred twenty (120) days, as applicable (in case of clause (vi)) after the initial delinquency for the related Appraisal Reduction Event), the Appraisal Reduction Amount shall be deemed to be an amount equal to 25% of the current Stated Principal Balance of the related Mortgage Loan or Serviced Whole Loan, as applicable, until such time as such appraisal or valuation referred to above is received by the applicable Special Servicer and the Appraisal Reduction Amount is calculated as

 

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of the first Determination Date that is at least ten (10) Business Days thereafter. Within sixty (60) days after the Appraisal Reduction Event, the applicable Special Servicer shall order and use reasonable efforts to receive an Appraisal (the cost of which shall be paid by the applicable Master Servicer as a Servicing Advance); provided, further, however, that with respect to an Appraisal Reduction Event as set forth in clause (i) of the definition of Appraisal Reduction Event, the applicable Special Servicer shall order and use reasonable efforts to receive such Appraisal within the one hundred twenty (120) day period set forth in such clause (i), and with respect to an Appraisal Reduction Event as set forth in clause (vi) of the definition of Appraisal Reduction Event, the applicable Special Servicer shall order and use reasonable efforts to receive such Appraisal within the ninety (90) day period or one hundred twenty (120) day period, as applicable, set forth in such clause (vi); provided, further, however, that in no event shall the applicable Special Servicer be required to order any such Appraisal prior to the conclusion of such sixty (60), ninety (90), or one hundred twenty (120) day period, as applicable, and in each case, the related Appraisal shall be promptly delivered in electronic format by the applicable Special Servicer to the applicable Master Servicer, the Directing Certificateholder (but only prior to the occurrence of a Consultation Termination Event), the Certificate Administrator and the Trustee. In connection with any Appraisal Reduction Amount, the applicable Master Servicer shall provide the applicable Special Servicer with the information as set forth in Section 4.05(c) within four (4) Business Days of its receipt of any such request. No Master Servicer will calculate Appraisal Reduction Amounts.

 

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

 

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

 

Any Appraisal Reduction Amount in respect of a Non-Serviced Whole Loan shall be calculated by the applicable party under and in accordance with and pursuant to the terms of the applicable Non-Serviced PSA, and the applicable Special Servicer and the Certificate Administrator are entitled to conclusively rely on such calculation.

 

Appraisal Reduction Event”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan, and Serviced Whole Loan, the earliest of (i) one hundred twenty (120) days after an uncured delinquency (without regard to the application of any Grace Period), other than any uncured delinquency in respect of a Balloon Payment, occurs in respect of such Mortgage Loan or Serviced Companion Loan or Serviced Whole Loan, as applicable, (ii) the date on which a reduction in the amount of Periodic Payments on such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, or a change in any other material economic term of such Mortgage Loan or Serviced Companion Loan or Serviced Whole Loan, as applicable (other than an extension of the Maturity Date), becomes effective as a result of a modification of such Mortgage Loan or Serviced Companion

 

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Loan or Serviced Whole Loan, as applicable, by the applicable Special Servicer, (iii) thirty (30) days after the date on which a receiver has been appointed for the Mortgaged Property, (iv) thirty (30) days after the date on which a Mortgagor or the tenant at a single tenant property declares bankruptcy (and the bankruptcy petition is not otherwise dismissed within such time), (v) sixty (60) days after the date on which an involuntary petition of bankruptcy is filed with respect to a Mortgagor if not dismissed within such time, (vi) ninety (90) days after an uncured delinquency occurs in respect of a Balloon Payment with respect to such Mortgage Loan or Serviced Companion Loan or Serviced Whole Loan, as applicable, except where a refinancing is anticipated within one hundred twenty (120) days after the Maturity Date of the Mortgage Loan or Serviced Companion Loan or Serviced Whole Loan, as applicable, in which case one hundred twenty (120) days after such uncured delinquency, and (vii) immediately after such Mortgage Loan or Serviced Companion Loan or Serviced Whole Loan, as applicable, becomes an REO Loan; provided that the thirty (30) day period referenced in clauses (iii) and clause (iv) shall not apply if the related Mortgage Loan is a Specially Serviced Loan; provided, further, however, that an Appraisal Reduction Event shall not occur at any time when the aggregate Certificate Balances of all Classes of Subordinate Certificates have been reduced to zero. The applicable Special Servicer shall notify the applicable Master Servicer, the Directing Certificateholder, and the Operating Advisor, or the applicable Master Servicer shall notify the applicable Special Servicer and the Operating Advisor, as applicable, promptly upon such Person having notice or knowledge of the occurrence of any of the foregoing events. The obligation to obtain an Appraisal following the occurrence of an Appraisal Reduction Event shall be subject to the provisions of Section 4.05 hereof.

 

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

 

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

 

Appraised Value”: (i) With respect to any Mortgaged Property (other than a Non-Serviced Mortgaged Property and a Mortgaged Property securing an NCB Co-op Mortgage Loan), the appraised value thereof as determined by the most recent Appraisal of the Mortgaged Property securing the related Mortgage Loan, Serviced Whole Loan, or AB Whole Loan, as applicable, (ii) with respect to each Mortgaged Property securing an NCB Co-op Mortgage Loan, the appraised value thereof based upon the most recent Appraisal obtained or conducted, as appropriate, pursuant to this Agreement and determined as if such property were operated as a residential cooperative (such “Appraised Value” generally equals the sum of (x) the gross share value of all cooperative units in such residential cooperative property (applying a discount for units that are subject to existing rent-regulated or rent-controlled rental tenants as and if deemed appropriate by the appraiser), based in part on various comparable sales of cooperative apartment units in the market, plus (y) the amount of the underlying debt encumbering such residential cooperative property) and (iii) with respect to a Non-Serviced Mortgaged Property, the appraised value allocable thereto, as determined pursuant to the applicable Non-Serviced PSA.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Asset Review Report”: As defined in Section 12.01(b)(viii), a report setting forth the findings and conclusions of an Asset Review substantially in the form attached hereto as Exhibit OO.

 

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

 

Asset Review Standard”: The performance by 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 when either (1) Mortgage Loans with an aggregate outstanding principal balance of 25.0% or more of the aggregate outstanding principal balance of all of the Mortgage Loans (including any REO Loans (or a portion of any REO Loan in the case of a Whole Loan)) held by the Trust as of the end of the applicable Collection Period are Delinquent Loans or (2) at least fifteen (15) Mortgage Loans are Delinquent Loans as of the

 

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end of the applicable Collection Period and the outstanding principal balance of such Delinquent Loans in the aggregate constitutes at least 20.0% of the aggregate outstanding principal balance of all of the Mortgage Loans (including any REO Loans (or a portion of any REO Loan in the case of a Whole Loan)) held by the Trust as of the end of the applicable Collection Period.

 

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

 

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

 

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

 

Assignment of Leases”: With respect to any Mortgaged Property, any assignment of leases, rents and profits or similar instrument executed by the Mortgagor, assigning to the mortgagee all of the income, rents and profits derived from the ownership, operation, leasing or 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”: With respect to any Mortgaged Property, 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 assignment of the Mortgage, which assignment, notice of transfer or equivalent instrument may be in the form of one or more blanket assignments covering Mortgages encumbering Mortgaged Properties located in the same jurisdiction, if permitted by law and acceptable for recording.

 

Assumed Scheduled Payment”: For any Collection Period and with respect to any Mortgage Loan (including any Non-Serviced Mortgage Loan) that is delinquent in respect of its Balloon Payment or any REO Loan (excluding, for purposes of determining or making 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 payment required by the related Mortgage Note or the original amortization schedule of such Mortgage Loan (as calculated with interest at the related Mortgage Rate), if applicable, assuming such Balloon Payment has not become due, after giving effect to any reduction in the principal balance thereof occurring in connection with a modification of such Mortgage Loan in connection with a default or bankruptcy (or similar proceeding), and (b) interest on the Stated Principal Balance of such Mortgage Loan or REO Loan (excluding, for purposes of determining P&I Advances, the portion allocable to any related Companion Loan) at the applicable Mortgage Rate (net of interest at the Servicing Fee Rate and the related Non-Serviced Primary Servicing Fee Rate, if applicable).

 

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

 

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

 

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(a)              the aggregate amount of all cash received on the Mortgage Loans (in the case of a Non-Serviced Mortgage Loan, only to the extent received by the Trust pursuant to the related Non-Serviced PSA and/or the related Non-Serviced Intercreditor Agreement) (including the portion of Loss of Value Payments deposited into the Collection Accounts pursuant to Section 3.05(g) of this Agreement) and any REO Property (including Compensating Interest Payments with respect to the Mortgage Loans required to be deposited by the Master Servicers pursuant to Section 3.17(a)) on deposit in the Collection Accounts (in each case, exclusive of any amount on deposit in or credited to any portion of the Collection Accounts that is held for the benefit of the Companion Holders) as of the close of business on the related P&I Advance Date, exclusive of (without duplication):

 

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

 

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

 

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

 

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

 

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

 

(vi)           all amounts deposited in the Collection Accounts in error; and

 

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

 

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

 

(c)           the aggregate amount of any Compensating Interest Payments made by the Master Servicers in respect of the Mortgage Loans with respect to such Distribution Date and P&I Advances made by the Master Servicers or the Trustee, as applicable, with respect to the Mortgage Loans and the Distribution Date (net of the related Certificate Administrator Fee, Operating Advisor Fee, Asset Representations Reviewer Fee, CREFC® Intellectual Property Royalty License Fee and Trustee Fee with respect to the Mortgage Loans for which such P&I Advances are made) pursuant to Section 4.03 or Section 7.05; and

 

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

 

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

 

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

 

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

 

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

 

Bancorp”: The Bancorp Bank, in its capacity as a Mortgage Loan Seller, and its successors in interest.

 

Barclays”: Barclays Bank PLC, in its capacity as a Mortgage Loan Seller, and its successors in interest.

 

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

 

BBCMS 2016-ETC Trust and Servicing Agreement”: The trust and servicing agreement, dated as of August 1, 2016, among Barclays Commercial Mortgage Securities LLC, 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 custodian, and Wilmington Trust, National Association, as trustee, as from time to time

 

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amended, supplemented or modified, relating to the issuance of the BBCMS 2016-ETC Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2016-ETC.

 

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

 

Borrower Party”: A borrower, a Mortgagor, a manager of a Mortgaged Property, an Accelerated Mezzanine Loan Lender, or any Borrower Party Affiliate. For the avoidance of doubt, with respect to an NCB Co-op Mortgage Loan, a person shall not be considered a “Borrower Party” solely by reason of such person holding one or more cooperative unit loans that are secured by direct equity interests in the related borrower or owning one or more residential cooperative units comprising the related Mortgaged Property as a result of any foreclosure, transfer in lieu of foreclosure or other exercise of remedies with respect to any such unit loan(s).

 

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

 

Borrower-Related Party”: As defined in Section 3.32(a).

 

Breach”: With respect to any Mortgage Loan, a breach of any representation or warranty with respect to such Mortgage Loan set forth in Section 4(b) of the related Mortgage Loan Purchase Agreement.

 

Business Day”: Any day other than a Saturday, a Sunday or a day on which banking institutions in Minnesota, North Carolina, New York, California, Texas, or the city and state in which the Corporate Trust Office of the Trustee or the Certificate Administrator, or the principal place of business or principal commercial mortgage loan servicing office of either Master Servicer or either Special Servicer is located, or the New York Stock Exchange or the Federal Reserve System of the United States of America are authorized or obligated by law or executive order to remain closed.

 

Central Park Retail Intercreditor Agreement”: That certain Agreement Between Noteholders, dated as of September 29, 2016, by and between the holders of the respective promissory notes evidencing the Central Park Retail Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

Central Park Retail Mortgage Loan”: With respect to the Central Park Retail Whole Loan, the Mortgage Loan that is included in the Trust Fund (identified as Mortgage Loan Number 12 on the Mortgage Loan Schedule), which is evidenced by promissory note A-2, and is

 

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pari passu in right of payment with the Central Park Retail Pari Passu Companion Loan to the extent set forth in the Central Park Retail Intercreditor Agreement.

 

Central Park Retail Mortgaged Property”: The Mortgaged Property that secures the Central Park Retail Whole Loan.

 

Central Park Retail Pari Passu Companion Loan”: With respect to the Central Park Retail Whole Loan, the Companion Loan evidenced by the related promissory note designated as promissory note A-1 and made by the related Mortgagor and secured by the Mortgage on the Central Park Retail Mortgaged Property, which is not included in the Trust Fund and which is pari passu in right of payment to the Central Park Retail Mortgage Loan to the extent set forth in the related Mortgage Loan documents and as provided in the Central Park Retail Intercreditor Agreement.

 

Central Park Retail Whole Loan”: The Central Park Retail Mortgage Loan, together with the Central Park Retail Pari Passu Companion Loan, each of which is secured by the same Mortgage on the Central Park Retail Mortgaged Property. References herein to the Central Park Retail Whole Loan shall be construed to refer to the aggregate indebtedness under the Central Park Retail Mortgage Loan and the Central Park Retail Pari Passu Companion Loan.

 

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

 

Certificate”: Any one of the Depositor’s Commercial Mortgage Pass-Through Certificates, Series 2016-C36, as executed and delivered by the Certificate Registrar and authenticated and delivered hereunder by the Authenticating Agent.

 

Certificate Administrator”: Wells Fargo Bank, National Association, in its capacity as certificate administrator, or if any successor certificate administrator is appointed thereto pursuant to Section 5.08 or any successor certificate administrator appointed hereunder. Wells Fargo Bank, National Association shall perform the certificate administrator role through its Corporate Trust Services division.

 

Certificate Administrator Fee”: The fee to be paid to the Certificate Administrator as compensation for the Certificate Administrator’s activities under this Agreement; provided that the Certificate Administrator Fee includes the Trustee Fee, and the Certificate Administrator shall pay the Trustee Fee to the Trustee.

 

Certificate Administrator Fee Rate”: The Certificate Administrator Fee shall be equal to the product of the rate equal to 0.0070% per annum and the Stated Principal Balance of the related Mortgage Loan (calculated in the same manner as interest is calculated on the related Mortgage Loan) or REO Loan (other than the portion of an REO Loan related to any Companion Loan) as of the preceding Distribution Date. The Certificate Administrator Fee includes the Trustee Fee.

 

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

 

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Certificate Balance”: With respect to any Class of Principal Balance Certificates or Trust Components, (i) on or prior to the first Distribution Date, an amount equal to the Original Certificate Balance of such Class or Trust Component as specified in the Preliminary Statement hereto and (ii) as of any date of determination after the first Distribution Date, the Certificate Balance of such Class of Principal Balance Certificates or Trust Components on the Distribution Date immediately prior to such date of determination (determined as adjusted pursuant to Section 1.02(iii)).

 

The aggregate Certificate Balance of the Class E-1 Certificates, the Class E Component E-1, the Class EF Component E-1 and the Class EFG Component E-1 shall be equal at all times to the Certificate Balance of the Class E-1 Trust Component. The aggregate Certificate Balance of the Class E-2 Certificates, the Class E Component E-2, the Class EF Component E-2 and the Class EFG Component E-2 shall be equal at all times to the Certificate Balance of the Class E-2 Trust Component. The aggregate Certificate Balance of the Class F-1 Certificates, the Class F Component E-1, the Class EF Component F-1 and the Class EFG Component F-1 shall be equal at all times to the Certificate Balance of the Class F-1 Trust Component. The aggregate Certificate Balance of the Class F-2 Certificates, the Class F Component F-2, the Class EF Component F-2 and the Class EFG Component F-2 shall be equal at all times to the Certificate Balance of the Class F-2 Trust Component. The aggregate Certificate Balance of the Class G-1 Certificates, the Class G Component G-1 and the Class EFG Component G-1 shall be equal at all times to the Certificate Balance of the Class G-1 Trust Component. The aggregate Certificate Balance of the Class G-2 Certificates, the Class G Component G-2 and the Class EFG Component G-2 shall be equal at all times to the Certificate Balance of the Class G-2 Trust Component. The aggregate Certificate Balance of the Class H-1 Certificates and the Class H Component H-1 shall be equal at all times to the Certificate Balance of the Class H-1 Trust Component. The aggregate Certificate Balance of the Class H-2 Certificates and the Class H Component H-2 shall be equal at all times to the Certificate Balance of the Class H-2 Trust Component.

 

The Certificate Balance of any Exchangeable Component will be equal to the applicable percentage interest referenced in the definition of such Exchangeable Component, multiplied by the Certificate Balance of the Trust Component referenced in the definition of such Exchangeable Component.

 

The original and outstanding Certificate Balances of any Class of Exchangeable Certificates and any Class of Exchangeable Combined Certificates are subject to adjustment in connection with any exchange of Exchangeable Certificates for Exchangeable Combined Certificates, or vice versa, in each case in accordance with Section 5.09 hereof.

 

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

 

Certificate Owner”: With respect to a Book-Entry Certificate, the Person who is the beneficial owner of such Certificate as reflected on the books of the Depository or on the

 

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books of a Depository Participant or on the books of an indirect participating brokerage firm for which a Depository Participant acts as agent.

 

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

 

Certificateholder” or “Holder”: The Person in whose name a Certificate is registered in the Certificate Register or any beneficial owner thereof; provided, however, that 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 either Master Servicer, either Special Servicer (including, for the avoidance of doubt, any Excluded Special Servicer), the Trustee, the Certificate Administrator, the Depositor, any Mortgage Loan Seller, a Mortgagor, a Borrower Party or any Affiliate of any of such Persons shall be deemed not to be outstanding (provided that notwithstanding the foregoing, any Controlling Class Certificates owned by an Excluded Controlling Class Holder shall not be deemed to be outstanding as to such Excluded Controlling Class Holder solely with respect to any related Excluded Controlling Class Loan; and provided, further, that any Controlling Class Certificates owned by the General Special Servicer or an Affiliate thereof shall not be deemed to be outstanding as to the General Special Servicer or such Affiliate solely with respect to any related Excluded Special Servicer 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 either Master Servicer, either Special Servicer (including, for the avoidance of doubt, any Excluded 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 an Asset Review and any Mortgage Loan Seller, solely with respect any related Mortgage Loan subject to the Asset Review); provided, further, that so long as there is no Servicer Termination Event with respect to a Master Servicer or a Special Servicer, as applicable, such Master Servicer and such Special Servicer or any such Affiliate thereof 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 either Special Servicer’s, either 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, either Master Servicer, either 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 Depositor, such Master Servicer, such Special Servicer, the Trustee or the Certificate Administrator, as applicable. The Trustee and the Certificate Administrator shall each be entitled to request and rely upon a certificate of any Master Servicer, any 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

 

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“Certificateholder” only the Person in whose name a Certificate is registered in the Certificate Register. The Trustee shall be the Holder of the Lower-Tier Regular Interests for the benefit of the Certificateholders.

 

Certificateholder Quorum”: The Holders of Certificates evidencing at least 50% of the aggregate Voting Rights (taking into account the application of Realized Losses and, other than with respect to the termination of the Asset Representations Reviewer, the application of any Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balance of the Certificates) of all Principal Balance Certificates on an aggregate basis.

 

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

 

Certification Parties”: As defined in Section 11.06.

 

Certification Party”: Any one of the Certification Parties.

 

Certifying Person”: As defined in Section 11.06.

 

Certifying Servicer”: As defined in Section 11.09.

 

Class”: With respect to any Certificates, Lower-Tier Regular Interests or Trust Component, all of the Certificates bearing the same alphabetical (and, if applicable, numerical) Class designation and each designated Lower-Tier Regular Interest, and each Class E Trust Component, each Class F Trust Component, each Class G Trust Component and each Class H Trust Component.

 

Class A Certificate”: Any Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB and Class A-S Certificate.

 

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

 

Class A-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.4530%.

 

Class A-2 Certificate”: A Certificate designated as “Class A-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class A-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.5040%.

 

Class A-3 Certificate”: A Certificate designated as “Class A-3” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

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Class A-3 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.8070%.

 

Class A-4 Certificate”: A Certificate designated as “Class A-4” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class A-4 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 3.0650%.

 

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

 

Class A-S Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) 3.4190% and (ii) the Weighted Average Net Mortgage Rate for such Distribution Date.

 

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

 

Class A-SB Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.9330%.

 

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

 

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

 

Class B Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) 3.6710% and (ii) the Weighted Average Net Mortgage Rate for such Distribution Date.

 

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

 

Class C Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date.

 

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

 

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Class D Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.9420%.

 

Class E Certificate”: Any one of the Certificates with a “Class E” 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 Exhibit A-1 to this Agreement, and representing beneficial ownership of the Class E Specific Grantor Trust Assets.

 

Class E Component”: Any of the Class E Component E-1 or Class E Component E-2.

 

Class E Component E-1”: The Class E-E-1 Exchange Percentage Interest of the Class E-1 Trust Component.

 

Class E Component E-2”: The Class E-E-2 Exchange Percentage Interest of the Class E-2 Trust Component.

 

Class E Distribution Account”: The segregated trust account or accounts created and maintained as a separate account or accounts by the Certificate Administrator (on behalf of the Trustee) pursuant to Section 3.04(g) of this Agreement, which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36, Class E Distribution Account”, and which must be an Eligible Account or a subaccount of an Eligible Account. The Class E Distribution Account shall not be an asset of any Trust REMIC formed hereunder, but rather shall be an asset of the Grantor Trust.

 

Class E Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class E Components and the proceeds thereof in the related Distribution Account.

 

Class E Trust Components”: The Class E-1 Trust Component and the Class E-2 Trust Component, individually or collectively, as the context may require.

 

Class E-1 Certificate”: Any one of the Certificates with a “Class E-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 Exhibit A-1 to this Agreement, and representing beneficial ownership of the Class E-1 Specific Grantor Trust Assets.

 

Class E-1 Component”: The Class E-1 Percentage Interest of the Class E-1 Trust Component.

 

Class E-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date.

 

Class E-1 Percentage Interest”: The quotient of (a) the Certificate Balance of the Class E-1 Certificates and (b) the Certificate Balance of the Class E-1 Trust Component. As of

 

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the Closing Date, the Class E-1 Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class E-1 Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class E-1 Component and the proceeds thereof in the related Distribution Account.

 

Class E-1 Trust Component”: An uncertificated “regular interest” in the Upper-Tier REMIC, beneficial ownership of which will be represented by the Class E, Class E-1, Class EF and/or Class EFG Certificates. The Class E-1 Trust Component will be held in the Grantor Trust.

 

Class E-2 Certificate”: Any one of the Certificates with a “Class E-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 Exhibit A-1 to this Agreement, and representing beneficial ownership of the Class E-2 Specific Grantor Trust Assets.

 

Class E-2 Component”: The Class E-2 Percentage Interest of the Class E-2 Trust Component.

 

Class E-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date.

 

Class E-2 Percentage Interest”: The quotient of (a) the Certificate Balance of the Class E-2 Certificates and (b) the Certificate Balance of the Class E-2 Trust Component. As of the Closing Date, the Class E-E-2 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class E-2 Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class E-2 Component and the proceeds thereof in the related Distribution Account.

 

Class E-2 Trust Component”: An uncertificated “regular interest” in the Upper-Tier REMIC, beneficial ownership of which will be represented by the Class E, Class E-2, Class EF and/or Class EFG Certificates. The Class E-2 Trust Component will be held in the Grantor Trust.

 

Class E-E-1 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class E Certificates and (b) the Certificate Balance of the Class E-1 Trust Component. As of the Closing Date, the Class E-E-1 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class E-E-2 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class E Certificates and (b) the Certificate Balance of the Class E-2 Trust Component. As of the Closing Date, the Class E-

 

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E-2 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class EF Certificate”: Any one of the Certificates with a “Class EF” 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 Exhibit A-1 to this Agreement, and representing beneficial ownership of the Class EF Specific Grantor Trust Assets.

 

Class EF Component”: Any of the Class EF Component E-1, Class EF Component E-2, Class EF Component F-1 or Class EF Component F-2.

 

Class EF Component E-1”: The Class EF-E-1 Exchange Percentage Interest of the Class E-1 Trust Component.

 

Class EF Component E-2”: The Class EF-E-2 Exchange Percentage Interest of the Class E-2 Trust Component.

 

Class EF Component F-1”: The Class EF-F-1 Exchange Percentage Interest of the Class F-1 Trust Component.

 

Class EF Component F-2”: The Class EF-F-2 Exchange Percentage Interest of the Class F-2 Trust Component.

 

Class EF Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class EF Components and the proceeds thereof in the related Distribution Account.

 

Class EF-E-1 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class EF Certificates and (b) the Certificate Balance of the Class E-1 Trust Component. As of the Closing Date, the Class EF-E-1 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class EF-E-2 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class EF Certificates and (b) the Certificate Balance of the Class E-2 Trust Component. As of the Closing Date, the Class EF-E-2 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class EF-F-1 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class EF Certificates and (b) the Certificate Balance of the Class F-1 Trust Component. As of the Closing Date, the Class EF-F-1 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class EF-F-2 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class EF Certificates and (b) the Certificate Balance of the Class F-2 Trust Component. As of the Closing Date, the Class EF-

 

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F-2 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class EFG Certificate”: Any one of the Certificates with a “Class EFG” 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 Exhibit A-1 to this Agreement, and representing beneficial ownership of the Class EFG Specific Grantor Trust Assets.

 

Class EFG Component”: Any of the Class EFG Component E-1, Class EFG Component E-2, Class EFG Component F-1, Class EFG Component F-2, Class EFG Component G-1 or Class EFG Component G-2.

 

Class EFG Component E-1”: The Class EFG-E-1 Exchange Percentage Interest of the Class E-1 Trust Component.

 

Class EFG Component E-2”: The Class EFG-E-2 Exchange Percentage Interest of the Class E-2 Trust Component.

 

Class EFG Component F-1”: The Class EFG-F-1 Exchange Percentage Interest of the Class F-1 Trust Component.

 

Class EFG Component F-2”: The Class EFG-F-2 Exchange Percentage Interest of the Class F-2 Trust Component.

 

Class EFG Component G-1”: The Class EFG-G-1 Exchange Percentage Interest of the Class G-1 Trust Component.

 

Class EFG Component G-2”: The Class EFG-G-2 Exchange Percentage Interest of the Class G-2 Trust Component.

 

Class EFG-E-1 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class EFG Certificates and (b) the Certificate Balance of the Class E-1 Trust Component. As of the Closing Date, the Class EFG-E-1 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class EFG-E-2 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class EFG Certificates and (b) the Certificate Balance of the Class E-2 Trust Component. As of the Closing Date, the Class EFG-E-2 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class EFG-F-1 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class EFG Certificates and (b) the Certificate Balance of the Class F-1 Trust Component. As of the Closing Date, the Class EFG-F-1 Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

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Class EFG-F-2 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class EFG Certificates and (b) the Certificate Balance of the Class F-2 Trust Component. As of the Closing Date, the Class EFG-F-2 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class EFG-G-1 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class EFG Certificates and (b) the Certificate Balance of the Class G-1 Trust Component. As of the Closing Date, the Class EFG-G-1 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class EFG-G-2 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class EFG Certificates and (b) the Certificate Balance of the Class G-2 Trust Component. As of the Closing Date, the Class EFG-G-2 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class EFG Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class EFG Components and the proceeds thereof in the related Distribution Account.

 

Class F Certificate”: Any one of the Certificates with a “Class F” 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 Exhibit A-1 to this Agreement, and representing beneficial ownership of the Class F Specific Grantor Trust Assets.

 

Class F Component”: Any of the Class F Component F-1 or Class F Component F-2.

 

Class F Component F-1”: The Class F-F-1 Exchange Percentage Interest of the Class F-1 Trust Component.

 

Class F Component F-2”: The Class F-F-2 Exchange Percentage Interest of the Class F-2 Trust Component.

 

Class F Distribution Account”: The segregated trust account or accounts created and maintained as a separate account or accounts by the Certificate Administrator (on behalf of the Trustee) pursuant to Section 3.04(g) of this Agreement, which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36, Class F Distribution Account”, and which must be an Eligible Account or a subaccount of an Eligible Account. The Class F Distribution Account shall not be an asset of any Trust REMIC formed hereunder, but rather shall be an asset of the Grantor Trust.

 

Class F Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class F Components and the proceeds thereof in the related Distribution Account.

 

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Class F Trust Components”: The Class F-1 Trust Component and the Class F-2 Trust Component, individually or collectively, as the context may require.

 

Class F-1 Certificate”: Any one of the Certificates with a “Class F-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 Exhibit A-1 to this Agreement, and representing beneficial ownership of the Class F-1 Specific Grantor Trust Assets.

 

Class F-1 Component”: The Class F-1 Percentage Interest of the Class F-1 Trust Component.

 

Class F-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date.

 

Class F-1 Percentage Interest”: The quotient of (a) the Certificate Balance of the Class F-1 Certificates and (b) the Certificate Balance of the Class F-1 Trust Component. As of the Closing Date, the Class F-1 Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class F-1 Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class F-1 Component and the proceeds thereof in the related Distribution Account.

 

Class F-1 Trust Component”: An uncertificated “regular interest” in the Upper-Tier REMIC, beneficial ownership of which will be represented by the Class F, Class F-1, Class EF and/or Class EFG Certificates. The Class F-1 Trust Component will be held in the Grantor Trust.

 

Class F-2 Certificate”: Any one of the Certificates with a “Class F-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 Exhibit A-1 to this Agreement, and representing beneficial ownership of the Class F-2 Specific Grantor Trust Assets.

 

Class F-2 Component”: The Class F-2 Percentage Interest of the Class F-2 Trust Component.

 

Class F-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date.

 

Class F-2 Percentage Interest”: The quotient of (a) the Certificate Balance of the Class F-2 Certificates and (b) the Certificate Balance of the Class F-2 Trust Component. As of the Closing Date, the Class F-2 Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

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Class F-2 Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class F-2 Component and the proceeds thereof in the related Distribution Account.

 

Class F-2 Trust Component”: An uncertificated “regular interest” in the Upper-Tier REMIC, beneficial ownership of which will be represented by the Class F, Class F-2, Class EF and/or Class EFG Certificates. The Class F-2 Trust Component will be held in the Grantor Trust.

 

Class F-F-1 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class F Certificates and (b) the Certificate Balance of the Class F-1 Trust Component. As of the Closing Date, the Class F-F-1 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class F-F-2 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class F Certificates and (b) the Certificate Balance of the Class F-2 Trust Component. As of the Closing Date, the Class F-F-2 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class G Certificate”: Any one of the Certificates with a “Class G” 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 Exhibit A-1 to this Agreement, and representing beneficial ownership of the Class G Specific Grantor Trust Assets.

 

Class G Component”: Any of the Class G Component G-1 or Class G Component G-2.

 

Class G Component G-1”: The Class G-G-1 Exchange Percentage Interest of the Class G-1 Trust Component.

 

Class G Component G-2”: The Class G-G-2 Exchange Percentage Interest of the Class G-2 Trust Component.

 

Class G Distribution Account”: The segregated trust account or accounts created and maintained as a separate account or accounts by the Certificate Administrator (on behalf of the Trustee) pursuant to Section 3.04(g) of this Agreement, which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36, Class G Distribution Account”, and which must be an Eligible Account or a subaccount of an Eligible Account. The Class G Distribution Account shall not be an asset of any Trust REMIC formed hereunder, but rather shall be an asset of the Grantor Trust.

 

Class G Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class G Components and the proceeds thereof in the related Distribution Account.

 

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Class G Trust Components”: The Class G-1 Trust Component and the Class G-2 Trust Component, individually or collectively, as the context may require.

 

Class G-1 Certificate”: Any one of the Certificates with a “Class G-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 Exhibit A-1 to this Agreement, and representing beneficial ownership of the Class G-1 Specific Grantor Trust Assets.

 

Class G-1 Component”: The Class G-1 Percentage Interest of the Class G-1 Trust Component.

 

Class G-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date.

 

Class G-1 Percentage Interest”: The quotient of (a) the Certificate Balance of the Class G-1 Certificates and (b) the Certificate Balance of the Class G-1 Trust Component. As of the Closing Date, the Class G-1 Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class G-1 Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class G-1 Component and the proceeds thereof in the related Distribution Account.

 

Class G-1 Trust Component”: An uncertificated “regular interest” in the Upper-Tier REMIC, beneficial ownership of which will be represented by the Class G, Class G-1 and/or Class EFG Certificates. The Class G-1 Trust Component will be held in the Grantor Trust.

 

Class G-2 Certificate”: Any one of the Certificates with a “Class G-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 Exhibit A-1 to this Agreement, and representing beneficial ownership of the Class G-2 Specific Grantor Trust Assets.

 

Class G-2 Component”: The Class G-2 Percentage Interest of the Class G-2 Trust Component. “Class G-2 Trust Component”: An uncertificated “regular interest” in the Upper-Tier REMIC, beneficial ownership of which will be represented by the Class G, Class G-2 and/or Class EFG Certificates. The Class G-2 Trust Component will be held in the Grantor Trust.

 

Class G-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date.

 

Class G-2 Percentage Interest”: The quotient of (a) the Certificate Balance of the Class G-2 Certificates and (b) the Certificate Balance of the Class G-2 Trust Component. As of the Closing Date, the Class G-2 Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

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Class G-2 Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class G-2 Component and the proceeds thereof in the related Distribution Account.

 

Class G-1 Trust Component”: An uncertificated “regular interest” in the Upper-Tier REMIC, beneficial ownership of which will be represented by the Class G, Class G-2 and/or Class EFG Certificates. The Class G-2 Trust Component will be held in the Grantor Trust.

 

Class G-G-1 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class G Certificates and (b) the Certificate Balance of the Class G-1 Trust Component. As of the Closing Date, the Class G-G-1 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class G-G-2 Exchange Percentage Interest”: The quotient of (a) the product of the related Exchange Proportion and the Certificate Balance of the Class G Certificates and (b) the Certificate Balance of the Class G-2 Trust Component. As of the Closing Date, the Class G-G-2 Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class H Certificate”: Any one of the Certificates with a “Class H” 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 Exhibit A-1 to this Agreement, and representing beneficial ownership of the Class H Specific Grantor Trust Assets.

 

Class H Component”: Any of the Class H Component H-1 or Class H Component H-2.

 

Class H Component H-1”: The Class H-1 Exchange Percentage Interest of the Class H-1 Trust Component.

 

Class H Component H-2”: The Class H-2 Exchange Percentage Interest of the Class H-2 Trust Component.

 

Class H Distribution Account”: The segregated trust account or accounts created and maintained as a separate account or accounts by the Certificate Administrator (on behalf of the Trustee) pursuant to Section 3.04(g) of this Agreement, which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36, Class H Distribution Account”, and which must be an Eligible Account or a subaccount of an Eligible Account. The Class H Distribution Account shall not be an asset of any Trust REMIC formed hereunder, but rather shall be an asset of the Grantor Trust.

 

Class H Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class H Components and the proceeds thereof in the related Distribution Account.

 

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Class H Trust Components”: The Class H-1 Trust Component and the Class H-2 Trust Component, individually or collectively, as the context may require.

 

Class H-1 Certificate”: Any one of the Certificates with a “Class H-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 Exhibit A-1 to this Agreement, and representing beneficial ownership of the Class H-1 Specific Grantor Trust Assets.

 

Class H-1 Component”: The Class H-1 Percentage Interest of the Class H-1 Trust Component.

 

Class H-1 Exchange Percentage Interest”: 100.0% minus the Class H-1 Percentage Interest. As of the Closing Date, the Class H-1 Exchange Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class H-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date.

 

Class H-1 Percentage Interest”: The quotient of (a) the Certificate Balance of the Class H-1 Certificates and (b) the Certificate Balance of the Class H-1 Trust Component. As of the Closing Date, the Class H-1 Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class H-1 Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class H-1 Component and the proceeds thereof in the related Distribution Account.

 

Class H-1 Trust Component”: An uncertificated “regular interest” in the Upper-Tier REMIC, beneficial ownership of which will be represented by the Class H and/or Class H-1 Certificates. The Class H-1 Trust Component will be held in the Grantor Trust.

 

Class H-2 Certificate”: Any one of the Certificates with a “Class H-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 Exhibit A-1 to this Agreement, and representing beneficial ownership of the Class H-2 Specific Grantor Trust Assets.

 

Class H-2 Component”: The Class H-2 Percentage Interest of the Class H-2 Trust Component.

 

Class H-2 Exchange Percentage Interest”: 100.0% minus the Class H-2 Percentage Interest. As of the Closing Date, the Class H-2 Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class H-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date.

 

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Class H-2 Percentage Interest”: The quotient of (a) the Certificate Balance of the Class H-2 Certificates and (b) the Certificate Balance of the Class H-2 Trust Component. As of the Closing Date, the Class H-2 Percentage Interest will be the amount set forth in the table entitled “Closing Date Percentage Interests” in Section 5.09(a).

 

Class H-2 Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class H-2 Component and the proceeds thereof in the related Distribution Account.

 

Class H-2 Trust Component”: An uncertificated “regular interest” in the Upper-Tier REMIC, beneficial ownership of which will be represented by the Class H and/or Class H-2 Certificates. The Class H-2 Trust Component will be held in the Grantor Trust.

 

Class LA1 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

Class LA2 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

Class LA3 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

Class LA4 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

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

 

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

 

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

 

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

 

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

 

Class LE1 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

Class LE2 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

Class LF1 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

Class LF2 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

Class LG1 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

Class LG2 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

Class LH1 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

Class LH2 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original

 

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Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

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

 

Class R Certificate”: A Certificate designated as “Class R” on the face thereof in the form of Exhibit A-2 hereto, and evidencing the sole class of “residual interests” in each Trust REMIC for purposes of the REMIC Provisions.

 

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

 

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

 

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

 

Class X-A Notional Amount”: As of any date of determination, the aggregate of the Certificate Balances of the Class A-1, Class A-2, Class A-3, Class A-4 and Class A-SB Certificates.

 

Class X-A Pass-Through Rate”: The Pass-Through Rate for Class X-A Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the weighted average of the Pass-Through Rates on the Class A-1, Class A-2, Class A-3, Class A-4 and Class A-SB Certificates for such Distribution Date, weighted on the basis of their respective Certificate Balances immediately prior to the Distribution Date. The Pass-Through Rate applicable to the Class X-A Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

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

 

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

 

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

 

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

 

Class X-D Notional Amount”: As of any date of determination, the Certificate Balance of the Class D Certificates.

 

Class X-D Pass-Through Rate”: The Pass-Through Rate for Class X-D Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the Pass-Through Rate of the Class D Certificates. The Pass-Through Rate applicable to the Class X-D Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

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

 

Clearstream”: Clearstream Banking, société anonyme or any successor thereto.

 

Closing Date”: November 3, 2016.

 

CMBS”: Commercial mortgage-backed securities.

 

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

 

Collateral Deficiency Amount” With respect to any AB Modified Loan as of any date of determination, 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 Mortgagor at the time the Mortgage Loan became (and as part of the modification related to) such AB Modified Loan for the benefit of the related Mortgaged Property or Mortgaged Properties (provided, that in the case of a Non-Serviced Mortgage Loan, the amounts set forth in this clause (y) will be taken into account solely to the extent relevant information is received by the applicable 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 applicable Special Servicer or the applicable Master Servicer, as the case may be, the Operating Advisor and the Certificate Administrator shall be entitled to conclusively rely on the applicable Special Servicer’s calculation or determination of any Collateral Deficiency Amount.

 

Collection Account”: A segregated custodial account or accounts created and maintained by each Master Servicer pursuant to Section 3.04(a) on behalf of the Trustee for the benefit of the Certificateholders, which, with respect to the General Master Servicer, shall be

 

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entitled “Wells Fargo Bank, National Association, as General Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36, Collection Account” and, with respect to the NCB Master Servicer, shall be entitled “National Cooperative Bank, N.A., as NCB Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36, Collection Account”. Any such account or accounts shall be an Eligible Account. Subject to the related Intercreditor Agreement and taking into account that each Companion Loan is subordinate or pari passu, as applicable, to the related Serviced Mortgage Loan to the extent set forth in the related Intercreditor Agreement, the subaccount described in the second paragraph of Section 3.04(b) that is part of the applicable Collection Account shall be for the benefit of the related Companion Holder, to the extent funds on deposit in such subaccount are attributed to such Companion Loan and shall not be an asset of the Trust, any Trust REMIC or the Grantor Trust.

 

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

 

COMM 2016-GCT Trust and Servicing Agreement”: The trust and servicing agreement, dated as of August 6, 2016, among Deutsche Mortgage & Asset Receiving Corporation, as depositor, KeyBank National Association, as servicer, Strategic Asset Services LLC, as special servicer, and Wells Fargo Bank, National Association, as certificate administrator, trustee, paying agent and custodian, as from time to time amended, supplemented or modified, relating to the issuance of the COMM 2016-GCT Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2016-GCT.

 

Commission”: The Securities and Exchange Commission.

 

Companion Distribution Account”: With respect to any Serviced Companion Loan, the separate account created and maintained by the Companion Paying Agent pursuant to Section 3.04(b) and held on behalf of the Companion Holders, which shall be entitled “Wells Fargo Bank, National Association, as Companion Paying Agent, for the benefit of the Companion Holders of the Companion Loans, relating to the Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36, Companion Distribution Account”. The Companion Distribution Account shall not be an asset of the Trust, any Trust REMIC or the Grantor Trust, but instead shall be held by the Companion Paying Agent on behalf of the Companion Holders. Any such account shall be an Eligible Account.

 

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Notwithstanding the foregoing, if the General Master Servicer and the Companion Paying Agent are the same entity, the Companion Distribution Account may be the subaccount referenced in the second paragraph of Section 3.04(b).

 

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

 

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

 

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

 

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

 

Compensating Interest Payments”: With respect to each Master Servicer, an aggregate amount as of any Distribution Date equal to the lesser of (i) the aggregate amount of Prepayment Interest Shortfalls incurred in connection with voluntary principal prepayments received in respect of the Mortgage Loans (other than Non-Serviced Mortgage Loans) for which such Master Servicer is acting as Master Servicer and any related Serviced Pari Passu Companion Loans (in each case other than any Specially Serviced Loan or any Mortgage Loan or related Serviced Pari Passu Companion Loan on which the applicable Special Servicer allowed a prepayment on a date other than the applicable Due Date) for the related Distribution Date and (ii) the aggregate of (A) that portion of such Master Servicer’s Servicing Fees for such Distribution Date that is, in the case of each Mortgage Loan (other than any Non-Serviced Mortgage Loans), Serviced Pari Passu Companion Loan and REO Loan for which such Master Servicer is acting as Master Servicer for which Servicing Fees are being paid to such Master Servicer for such Collection Period, calculated at a rate of 0.00250% per annum, (B) all Prepayment Interest Excesses received by such Master Servicer during such Collection Period with respect to the Mortgage Loans (other than the Non-Serviced Mortgage Loans) (and, so long as a Serviced Whole Loan is serviced hereunder, the related Serviced Pari Passu Companion Loan) for which such Master Servicer is acting as Master Servicer subject to such prepayment and (C) to the extent earned on voluntary principal prepayments, net investment earnings payable to such Master Servicer for such Collection Period received by such Master Servicer during such Collection Period with respect to the Mortgage Loans (other than the Non-Serviced Mortgage Loans) for which such Master Servicer is acting as Master Servicer or any related Serviced Pari Passu Companion Loan, as applicable, subject to such prepayment. In no event will the rights of the Certificateholders to the offset of the aggregate Prepayment Interest Shortfalls be cumulative. However, if a Prepayment Interest Shortfall occurs with respect to a Mortgage Loan as a result of either Master Servicer’s allowing the related Mortgagor to deviate (a “Prohibited Prepayment”) from the terms of the related Mortgage Loan documents regarding Principal Prepayments (other than (V) a Non-Serviced Mortgage Loan, (W) subsequent to a default under the related Mortgage Loan documents or if the Mortgage Loan is a Specially Serviced Loan, (X) pursuant to applicable law or a court order or otherwise in such circumstances where the applicable Master Servicer is required to accept such Principal Prepayment in accordance with the Servicing Standard, (Y) at the request or with the consent of the applicable Special Servicer or, so long as no Control Termination Event has occurred and is continuing, and only with respect to Mortgage

 

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Loans other than Excluded Loans, the Directing Certificateholder or (Z) in connection with the payment of any Insurance and Condemnation Proceeds), then for purposes of calculating the Compensating Interest Payment for the related Distribution Date, such Master Servicer shall pay, without regard to clause (ii) above, the aggregate amount of Prepayment Interest Shortfalls with respect to such Mortgage Loan, otherwise described in clause (i) above in connection with such Prohibited Prepayments. No Master Servicer will be required to make any Compensating Interest Payment as a result of any prepayments on Mortgage Loans for which it does not act as Master Servicer.

 

For the avoidance of doubt, Compensating Interest Payments attributable to a Serviced Whole Loan shall be allocated among the related Mortgage Loan and the related Serviced Pari Passu Companion Loan(s), pro rata, in accordance with their respective principal balances.

 

Consultation Termination Event”: At any date at which (i) there is no grouping of Control Eligible Certificates as to which the related Trust Components, collectively, have a then-outstanding Certificate Balance at least equal to 25% of the initial aggregate Certificate Balance of such Trust Components, in each case, without regard to the application of any Cumulative Appraisal Reduction Amounts; or (ii) the Holder of a majority of the aggregate Certificate Balance of the Class E-1, Class E-2, Class E, Class EF and Class EFG Certificates (such majority determined counting only the portion of the Certificate Balance of each such Class evidencing an interest in the Class E Trust Components) has irrevocably waived its right, in writing, to exercise any of the rights of the Controlling Class Certificateholder and such rights have not been reinstated to a successor controlling class certificateholder pursuant to Section 3.23(l); provided that no Consultation Termination Event resulting solely from the operation of clause (ii) shall be deemed to have existed or be in continuance with respect to a successor Holder of any such Class of Certificates that has not irrevocably waived its right to exercise any of the rights of the Controlling Class Certificateholder; provided that no Consultation Termination Event may occur with respect to the Loan-Specific Directing Certificateholder related to a Servicing Shift Whole Loan and the term “Consultation Termination Event” shall not be applicable to the Loan-Specific Directing Certificateholder related to such Servicing Shift Whole Loan; provided, further, that a Consultation Termination Event shall be deemed not continuing in the event that the Certificate Balances of the Certificates other than the Control Eligible Certificates have been reduced to zero as a result of principal payments on the Mortgage Loans.

 

Conrad Indianapolis Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of November 3, 2016, by and between the holder of the Conrad Indianapolis Pari Passu Companion Loan and the holder of the Conrad Indianapolis Mortgage Loan, relating to the relative rights of such holders of the Conrad Indianapolis Whole Loan, as the same may be further amended in accordance with the terms thereof.

 

Conrad Indianapolis Mortgage Loan”: With respect to the Conrad Indianapolis Whole Loan, the Mortgage Loan that is included in the Trust Fund (identified as Mortgage Loan Number 6 on the Mortgage Loan Schedule), which is evidenced by promissory note A-1 and is generally pari passu in right of payment with the Conrad Indianapolis Pari Passu Companion Loan to the extent set forth in the Conrad Indianapolis Intercreditor Agreement.

 

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Conrad Indianapolis Mortgaged Property”: The Mortgaged Property that secures the Conrad Indianapolis Whole Loan.

 

Conrad Indianapolis Pari Passu Companion Loan”: With respect to the Conrad Indianapolis Whole Loan, the Companion Loan evidenced by the related promissory note designated as promissory note A-2 and made by the related Mortgagor and secured by the Mortgage on the Conrad Indianapolis Mortgaged Property, which is not included in the Trust Fund and which is generally pari passu in right of payment to the Conrad Indianapolis Mortgage Loan to the extent set forth in the related Mortgage Loan documents and as provided in the Conrad Indianapolis Intercreditor Agreement.

 

Conrad Indianapolis Pooling and Servicing Agreement”: Any pooling and servicing agreement that creates a trust whose assets include the Conrad Indianapolis Pari Passu Companion Loan.

 

Conrad Indianapolis Whole Loan”: The Conrad Indianapolis Mortgage Loan, together with the Conrad Indianapolis Pari Passu Companion Loan, each of which is secured by the same Mortgage on the Conrad Indianapolis Mortgaged Property. References herein to the Conrad Indianapolis Whole Loan shall be construed to refer to the aggregate indebtedness under the Conrad Indianapolis Mortgage Loan and the Conrad Indianapolis Pari Passu Companion Loan.

 

Consumer Price Index for All Urban Consumers”: The “Consumer Price Index for All Urban Consumers” as published by the U.S. Department of Labor.

 

Control Eligible Certificates”: All Classes of Certificates, collectively, within each of the following four (4) groupings of Certificates: (i) the Classes of Certificates related to the Class E Trust Components, being the Class E-1, Class E-2, Class E, Class EF and Class EFG Certificates, in the case of each such Class, only to the extent evidencing an interest in the Class E Trust Components (and the aggregate Certificate Balance of this grouping of Certificates shall only take into account the portion of the Certificate Balance of each such Class representing an interest in the Class E Trust Components); (ii) the Classes of Certificates related to the Class F Trust Components, being the Class F-1, Class F-2, Class F, Class EF and Class EFG Certificates, in the case of each such Class, only to the extent evidencing an interest in the Class F Trust Components (and the aggregate Certificate Balance of this grouping of Certificates shall only take into account the portion of the Certificate Balance of each such Class representing an interest in the Class F Trust Components); (iii) the Classes of Certificates related to the Class G Trust Components, being the Class G-1, Class G-2, Class G and Class EFG Certificates, in the case of each such Class, only to the extent evidencing an interest in the Class G Trust Components (and the aggregate Certificate Balance of this grouping of Certificates shall only take into account the portion of the Certificate Balance of each such Class representing an interest in the Class G Trust Components) and (iv) the Classes of Certificates related to the Class H Trust Components, being the Class H-1, Class H-2 and Class H Certificates.

 

Control Termination Event”: The occurrence of (i) the Class E-1 Trust Component and the Class E-2 Trust Component have an aggregate Certificate Balance (taking into account the application of any Cumulative Appraisal Reduction Amounts to notionally

 

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reduce the Certificate Balance of such Trust Components in accordance with Section 4.05(a) hereof) of less than 25% of the initial aggregate Certificate Balance of such Trust Components or (ii) the Holder of a majority of the aggregate Certificate Balance of the Class E-1, Class E-2, Class E, Class EF and Class EFG Certificates (such majority determined counting only the portion of the Certificate Balance of each such Class evidencing an interest in the Class E Trust Components) has irrevocably waived its right, in writing, to exercise any of the rights of the Controlling Class Certificateholder and such rights have not been reinstated to a successor controlling class certificateholder pursuant to Section 3.23(l); provided that no Control Termination Event may occur with respect to the Loan Specific Directing Certificateholder related to a Servicing Shift Whole Loan and the term “Control Termination Event” shall not be applicable to the Loan Specific Directing Certificateholder related to such Servicing Shift Whole Loan; provided, that a Control Termination Event shall not be deemed continuing in the event that the Certificate Balances of the Certificates other than the Control Eligible Certificates have been reduced to zero as a result of principal payments on the Mortgage Loans.

 

Controlling Class”: As of any date of determination, all Classes of Certificates, collectively, within the grouping of Control Eligible Certificates that relates to the Controlling Trust Components (and the aggregate Certificate Balance of such grouping of Certificates shall only take into account the portion of the Certificate Balance of each such Class representing an interest in the related Controlling Trust Components). The Controlling Class as of the Closing Date will be, collectively, the Class H-1 Certificates and the Class H-2 Certificates and, to the extent any Class H-1 Certificates and Class H-2 Certificates have been exchanged for Class H Certificates, the Class H Certificates.

 

Controlling Class Certificateholders”: Each Holder (or Certificate Owner, if applicable) of a Certificate of the Controlling Class as determined by the Certificate Registrar, from time to time, upon request by any party hereto. The Depositor, the Trustee, either Master Servicer, either Special Servicer or the Operating Advisor may from time to time request (the cost of which being an expense of the Trust) that the Certificate Administrator provide a list of the Holders (or Certificate Owners, if applicable) of the Controlling Class and the Certificate Administrator shall promptly provide such list without charge to such Depositor, Trustee, Master Servicer, Operating Advisor or Special Servicer, as applicable. The Trustee, Master Servicers, the Special Servicers and the Operating Advisor shall be entitled to rely on any such list so provided.

 

Controlling Companion Loan”: With respect to a Servicing Shift Whole Loan, the related Companion Loan which, in accordance with the related Intercreditor Agreement, will be the “Controlling Note” or similarly defined term as identified in the related Intercreditor Agreement after the securitization of such Companion Loan. As of the Closing Date, each of the Gurnee Mills Pari Passu Note A-1A and the 101 Hudson Street Pari Passu Note A-1-1 shall be a Controlling Companion Loan related to the Trust.

 

Controlling Trust Component”: The most subordinate pair of Trust Components, collectively, having the same alphabetical designation with an aggregate Certificate Balance, as notionally reduced by any Cumulative Appraisal Reduction Amounts allocable to such Class in accordance with Section 4.05(a), at least equal to 25% of the aggregate initial Certificate Balance of such Trust Components; provided, that if at any time the Certificate

 

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Balances of the Certificates other than the Control Eligible Certificates have been reduced to zero as a result of principal payments on the Mortgage Loans, then the Controlling Trust Components shall be the most subordinate pair of Trust Components having the same alphabetical designation that have an aggregate Certificate Balance greater than zero without regard to any Cumulative Appraisal Reduction Amounts. The Controlling Trust Components as of the Closing Date will be the Class H Trust Components.

 

Corporate Trust Office”: The principal corporate trust office of the Trustee and the Certificate Administrator at which at any particular time its corporate trust business with respect to this Agreement shall be administered, which office at the date of the execution of this Agreement is located (i) with respect to Certificate transfers and surrenders, at Wells Fargo Center, Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479-0113; (ii) with respect to the Trustee at 1100 North Market Street, Wilmington, Delaware 19890, Attention: CMBS Trustee WFCM 2016-C36; and (iii) for all other purposes, to the Certificate Administrator at 9062 Annapolis Road, Columbia, Maryland 21045, Attention: Corporate Trust Services (CMBS), WFCM Commercial Mortgage Securities Trust 2016-C36, telecopy number (410) 715-2380.

 

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

 

CREFC®”: The Commercial Real Estate Finance Council®, or any successor organization reasonably acceptable to the Certificate Administrator, each Master Servicer, each Special Servicer and, prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder.

 

CREFC® Advance Recovery Report”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Advance Recovery Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.

 

CREFC® Appraisal Reduction Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Appraisal Reduction Template” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

CREFC® Intellectual Property Royalty License Fee”: With respect to each Mortgage Loan and REO Loan (other than the portion of an REO Loan related to any Companion Loan) and for any Distribution Date, the amount accrued during the related Interest Accrual Period at the CREFC® Intellectual Property Royalty License Fee Rate on the Stated Principal Balance of such Mortgage Loan or REO Loan as of the close of business on the

 

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Distribution Date in such Interest Accrual Period; provided that such amounts shall be computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the related Mortgage Loan or REO Loan is computed and shall be prorated for partial periods. For the avoidance of doubt, the CREFC® Intellectual Property Royalty License Fee shall be deemed payable by the Master Servicers from the Lower-Tier REMIC.

 

CREFC® Intellectual Property Royalty License Fee Rate”: With respect to each Mortgage Loan and REO Loan, 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”: The collection of reports specified by the CREFC® from time to time as the “CREFC® Investor Reporting Package.” As of the Closing Date, the CREFC® Investor Reporting Package contains seven electronic files ((1) CREFC® Loan Setup File, (2) CREFC® Loan Periodic Update File, (3) CREFC® Property File, (4) CREFC® Bond Level File, (5) CREFC® Collateral Summary File, (6) CREFC® Financial File and (7) CREFC® Special Servicer Loan File) and nine surveillance reports ((1) CREFC® Servicer Watch List, (2) CREFC® Delinquent Loan Status Report, (3) CREFC® REO Status Report, (4) CREFC® Comparative Financial Status Report, (5) CREFC® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report, (6) CREFC® Operating Statement Analysis Report, (7) CREFC® NOI Adjustment Worksheet, (8) CREFC® Loan Level Reserve/LOC Report and (9) with respect to Mortgage Loans that have a Companion Loan, as applicable, the CREFC® Total Loan Report). In addition, the CREFC® Investor Reporting Package shall include the CREFC® Advance Recovery Report. In addition, the CREFC® Investor Reporting Package shall include the following nine templates: (1) CREFC® Appraisal Reduction Template, (2) CREFC® Servicer Realized Loss Template, (3) CREFC® Reconciliation of Funds Template, (4) CREFC® Historical Bond/Collateral Realized Loss Reconciliation Template, (5) CREFC® Historical Liquidation Loss Template, (6) CREFC® Interest Shortfall Reconciliation Template, (7) CREFC® Loan Modification Report, (8) CREFC® Loan Liquidation Report and (9) CREFC® REO Liquidation Report. The CREFC® Investor Reporting Package shall be substantially in the form of, and containing the information called for in, the downloadable forms of the “CREFC® IRP” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information and containing such additional information or reports as may from time to time be approved by the CREFC® for commercial mortgage-backed securities transactions generally. For the purposes of the production of the CREFC® Comparative Financial Status Report by the applicable Master Servicer or the applicable Special Servicer of any such report that is required to state information for any period prior to the Cut-off Date, the applicable Master Servicer or the applicable Special Servicer, as the case may be, may conclusively rely (without independent verification), absent manifest error, on information provided to it by the Mortgage Loan Sellers or by the related Mortgagor or (x) in the case of such a report produced by either Master Servicer, by the applicable Special Servicer (if other than such Master Servicer or an Affiliate thereof) and (y) in

 

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the case of such a report produced by either Special Servicer, by the applicable Master Servicer (if other than such Special Servicer or an Affiliate thereof).

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

CREFC® Operating Statement Analysis Report”: The report in the “Operating Statement Analysis Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such

 

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information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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presentation of such information and containing such additional information as may from time to time be adopted by the CREFC® for commercial mortgage-backed securities transactions and is reasonably acceptable to the Master Servicers.

 

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

 

Cross-Over Date”: The Distribution Date on which the Certificate Balances of the Subordinate Certificates (calculated without giving effect to the exchange of any Class of Exchangeable Certificates for any Class or Classes of Exchangeable Combined Certificates) have all previously been reduced to zero as a result of the allocation of Realized Losses to such Certificates.

 

Crossed Mortgage Loan Group”: With respect to (i) any mortgage loan that consists of more than one commercial mortgage loan, the underlying group of loans that are cross-collateralized and cross-defaulted with each other and (ii) any two or more individual mortgage loans that are cross-collateralized and cross-defaulted with each other, such cross-collateralized and cross-defaulted mortgage loans. For the avoidance of doubt, there is no Crossed Mortgage Loan Group under this Agreement.

 

Crossed Underlying Loan”: With respect to any Crossed Mortgage Loan Group, a mortgage loan that is cross-collateralized and cross-defaulted with one or more other mortgage loans within such Crossed Mortgage Loan Group. For the avoidance of doubt, there is no Crossed Underlying Loan under this Agreement.

 

Crossed Underlying Loan Repurchase Criteria”: With respect to any Crossed Mortgage Loan Group as to which one or more (but not all) of the Crossed Underlying Loans therein are affected by a Material Defect (the Crossed Underlying Loan(s) in such Crossed Mortgage Loan Group affected by such Material Defect, for purposes of this definition, the “affected Crossed Underlying Loans” and the other Crossed Underlying Loan(s) in such Crossed Mortgage Loan Group, for purposes of this definition, the “remaining Crossed Underlying Loans”) (i) the debt service coverage ratio for all the remaining Crossed Underlying Loans for the four most recently reported calendar quarters preceding the repurchase or substitution shall not be less than the least of (a) 0.10x below the debt service coverage ratio for the Crossed Mortgage Loan Group (including the affected Crossed Underlying Loan(s)) set forth in Annex A-1 to the Prospectus, (b) the debt service coverage ratio for the Crossed Mortgage Loan Group (including the affected Crossed Underlying Loan(s)) for the four preceding calendar quarters preceding the repurchase or replacement and (c) 1.25x, (ii) the loan-to-value ratio for all the remaining Crossed Underlying Loans determined at the time of repurchase or substitution based upon an Appraisal obtained by the General Special Servicer at the expense of the related Mortgage Loan Seller shall not be greater than the greatest of (a) the loan-to-value ratio, expressed as a whole number percentage (taken to one decimal place), for the entire Crossed Mortgage Loan Group, (including the affected Crossed Underlying Loan(s)) set forth in Annex A-1 to the Prospectus plus 10%, (b) the loan-to-value ratio, expressed as a whole number percentage (taken to one decimal place), for the entire such Crossed Mortgage Loan Group, including the affected Crossed Underlying Loan(s) at the time of repurchase or substitution, and (c) 75%, (iii) the related Mortgage Loan Seller, at its expense, shall have furnished the Trustee

 

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and the Certificate Administrator with an Opinion of Counsel that any modification relating to the repurchase or substitution of a Crossed Underlying Loan shall not cause an Adverse REMIC Event, (iv) the related Mortgage Loan Seller causes the affected Crossed Underlying Loan to become not cross-collateralized and cross-defaulted with the remaining related Crossed Underlying Loans prior to such repurchase or substitution or otherwise forbears from exercising enforcement rights against the Primary Collateral for any Crossed Underlying Loan(s) remaining in the Trust (while the Trust forbears from exercising enforcement rights against the Primary Collateral for the Mortgage Loan removed from the Trust) and (v) (other than with respect to any Excluded Loan) unless a Control Termination Event has occurred and is continuing, the Directing Certificateholder shall have consented to the repurchase or substitution of the affected Crossed Underlying Loan, which consent shall not be unreasonably withheld, conditioned or delayed.

 

Cumulative Appraisal Reduction Amount”: As of any date of determination for any Mortgage Loan, 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 applicable Master Servicer and the Certificate Administrator shall be entitled to conclusively rely on the applicable Special Servicer’s calculation or determination of any Cumulative Appraisal Reduction Amount with respect to a Mortgage Loan (other than a Non-Serviced Mortgage Loan). With respect to a Non-Serviced Mortgage Loan, the applicable Special Servicer and the Certificate Administrator will be entitled to conclusively rely on the applicable Non-Serviced Special Servicer’s calculation of any Appraisal Reduction Amount with respect to such Non-Serviced Mortgage Loan and on the applicable Master Servicer’s calculation or determination of any Collateral Deficiency Amount with respect to any such Non-Serviced Mortgage Loan that is an AB Modified Loan.

 

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

 

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

 

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

 

Cut-off Date”: With respect to each Mortgage Loan, the related Due Date of such Mortgage Loan in November 2016, or with respect to any Mortgage Loan that has its first Due Date in December 2016, the date that would have otherwise been the related Due Date in November 2016.

 

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

 

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

 

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

 

Defaulted Loan”: A Mortgage Loan (other than a Non-Serviced Mortgage Loan) or a Serviced Whole Loan (i) that is delinquent at least sixty (60) days in respect of its Periodic Payments or in respect of its Balloon Payment, if any; provided that in respect of a Balloon Payment, such period will be 120 days if the related Mortgagor has provided the applicable Special Servicer with a written and fully executed commitment or otherwise binding application for refinancing of the related Mortgage Loan from an acceptable lender reasonably satisfactory in form and substance to such Special Servicer; and, in either case, such delinquency is to be determined without giving effect to any Grace Period permitted by the related Mortgage or Mortgage Note and without regard to any acceleration of payments under the related Mortgage and Mortgage Note or (ii) as to which the applicable Special Servicer has, by written notice to the related Mortgagor, accelerated the maturity of the indebtedness evidenced by the related Mortgage Note. For the avoidance of doubt, a defaulted Companion Loan does not constitute a “Defaulted Loan”.

 

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

 

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

 

Deficient Exchange Act Deliverable”: With respect to a Master Servicer, a Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Custodian, the Certificate Administrator, the Trustee and each Servicing Function Participant and Additional Servicer retained by it (other than an Initial Sub-Servicer), any item (x) regarding such party, (y) prepared by such party or any registered public accounting firm, attorney or other agent retained by such party to prepare such information and (z) delivered by or on behalf of such party pursuant to the delivery requirements under Article XI 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.

 

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

 

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Serviced Whole Loan which valuation results from a proceeding initiated under the Bankruptcy Code.

 

Definitive Certificate”: Any Certificate in definitive, fully registered form without interest coupons. Initially, the Class R Certificates and any Certificate issued pursuant to Section 5.02(c) and (d) shall be Definitive Certificates.

 

Delinquent Loan”: A Mortgage Loan that is delinquent at least sixty (60) days in respect of its Periodic Payments or Balloon Payment, if any, in either case such delinquency to be determined without giving effect to any Grace Period.

 

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

 

Depositor”: Wells Fargo Commercial Mortgage Securities, Inc., a North Carolina corporation, or its successor in interest.

 

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

 

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

 

Designated Site”: The website to which Diligence Files are uploaded as designated by the Depositor to the Mortgage Loan Sellers.

 

Determination Date”: With respect to any Distribution Date, the eleventh (11th) day of each calendar month (or, if the eleventh (11th) calendar day of that month is not a Business Day, then the next Business Day), commencing in December 2016.

 

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

 

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the applicable Mortgage Loan Seller or another prior holder, together with a copy of the Mortgage Note and an indemnity properly assigned and endorsed to the Trustee);

 

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

 

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

 

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

 

(v)        the policy or certificate of lender’s title insurance issued 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;

 

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

 

(vii)      any Intercreditor Agreement relating to permitted debt of the Mortgagor, including any intercreditor agreement relating to a Serviced Whole Loan;

 

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

 

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

 

(x)        other than with respect to an NCB Co-op Mortgage Loan, any property management agreement relating to a Mortgage Loan or a Serviced Whole Loan;

 

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

 

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agreements or any notice to the franchisor of the transfer of a Mortgage Loan or Serviced Whole Loan;

 

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

 

(xiii)     any related mezzanine intercreditor agreement;

 

(xiv)     all related environmental reports; and

 

(xv)      all related environmental insurance policies;

 

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

 

(c)          other than with respect to a hotel property (except with respect to tenanted commercial space within a hotel property) or an NCB Co-op Mortgage Loan, copies of a rent roll;

 

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

 

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

 

(f)           a copy of 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 closing of the related Mortgage Loan;

 

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

 

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

 

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

 

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

 

(k)          a copy of all zoning reports;

 

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

 

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

  

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(n)          a copy of all UCC searches;

 

(o)          a copy of all litigation searches;

 

(p)          a copy of all bankruptcy searches;

 

(q)          a copy of any origination settlement statement;

 

(r)           a copy of the Insurance Summary Report;

 

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

 

(t)           a copy of all escrow statements related to the escrow account balances as of the Mortgage Loan origination date;

 

(u)          a copy of all related environmental reports that were received by the applicable Mortgage Loan Seller;

 

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

 

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

 

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

 

Directing Certificateholder”: (A) With respect to a Servicing Shift Whole Loan, the Directing Certificateholder shall be the related Loan-Specific Directing Certificateholder, and (B) with respect to each Mortgage Loan (other than each Servicing Shift Mortgage Loan and any Excluded Loan), the initial Directing Certificateholder shall be C-III Collateral Management LLC. Thereafter, with respect to the Mortgage Loans described in clause (B) of the first sentence of this definition, the Directing Certificateholder shall be 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

 

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

 

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

 

Disclosable Special Servicer Fees”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) and any related Serviced Companion Loan (including any related REO Property), any compensation and other remuneration (including, without limitation, in the form of commissions, brokerage fees, or rebates, or as a result of any other fee-sharing arrangement) received or retained by the applicable Special Servicer or any of its

 

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Affiliates that is paid by any Person (including, without limitation, the Trust, any Mortgagor, any manager, any guarantor or indemnitor in respect of a Mortgage Loan or Serviced Companion Loan and any purchaser of any such Mortgage Loan or Serviced Companion Loan or REO Property) in connection with the disposition, workout or foreclosure of any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Companion Loan, the management or disposition of any REO Property, and the performance by the applicable Special Servicer or any such Affiliate of any other special servicing duties under this Agreement, other than (1) any Permitted Special Servicer/Affiliate Fees and (2) any compensation to which the applicable Special Servicer is entitled pursuant to Section 3.11 of this Agreement.

 

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

 

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

 

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

 

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

 

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

 

Disqualified Organization”: Any of (i) the United States, any State or political subdivision thereof, any possession of the United States or any agency or instrumentality of any of the foregoing (other than an instrumentality which is a corporation if all of its activities are subject to tax and, except for Freddie Mac, a majority of its board of directors is not selected by such governmental unit), (ii) a foreign government, any international organization or any agency or instrumentality of any of the foregoing, (iii) any organization which is exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on unrelated business taxable income) on any excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to the Class R Certificates (except certain farmers’ cooperatives described in Section 521 of the Code), (iv) rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of the Code, (v) an “electing large partnership,” as defined in Section 775 of the Code and (vi) any other Person so designated by the Trustee or the Certificate Administrator based upon an Opinion of Counsel as provided to the Trustee or the Certificate Administrator (at no expense to the Trustee or the Certificate Administrator) that the holding of an Ownership Interest in a Class R Certificate by such Person may cause either Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding or any Person having an Ownership Interest in any Class of Certificates (other than such Person) to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the Transfer of an Ownership Interest in a Class R Certificate to such Person. The terms “United States,”

 

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“State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.

 

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

 

Distribution Date”: The fourth (4th) Business Day following each Determination Date, beginning in December 2016. The initial Distribution Date shall be December 16, 2016.

 

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

 

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

 

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

 

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

 

Easton Town Center Intercreditor Agreement”: That certain Amended and Restated Co-Lender Agreement, dated as of September 6, 2016, by and between the holders of each of the Easton Town Center Pari Passu Companion Loans, the holders of the Easton Town Center Subordinate Companion Loans and the holder of the Easton Town Center Mortgage Loan, relating to the relative rights of such holders of the Easton Town Center Whole Loan, as the same may be further amended in accordance with the terms thereof.

 

Easton Town Center Mortgage Loan”: With respect to the Easton Town Center Whole Loan, the Mortgage Loan that is included in the Trust Fund (identified as Mortgage Loan Number 5 on the Mortgage Loan Schedule), which is evidenced by promissory note A-1-B2, and is pari passu in right of payment with the Easton Town Center Pari Passu Companion Loans and senior in right of payment to the Easton Town Center Subordinate Companion Loans to the extent set forth in the Easton Town Center Intercreditor Agreement.

 

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Easton Town Center Mortgaged Property”: The Mortgaged Property that secures the Easton Town Center Whole Loan.

 

Easton Town Center Pari Passu Companion Loans”: With respect to the Easton Town Center Whole Loan, the Companion Loans evidenced by the related promissory notes designated as promissory notes A-1-A, A-2-A, A-1-B1, A-1-B3 and A-2-B and made by the related Mortgagor and secured by the Mortgage on the Easton Town Center Mortgaged Property, which are not included in the Trust Fund and which are pari passu in right of payment to the Easton Town Center Mortgage Loan to the extent set forth in the related Mortgage Loan documents and as provided in the Easton Town Center Intercreditor Agreement.

 

Easton Town Center Subordinate Companion Loans”: With respect to the Easton Town Center Whole Loan, the Companion Loans evidenced by the related promissory notes designated as promissory notes B-1 and B-2 and made by the related Mortgagor and secured by the Mortgage on the Easton Town Center Mortgaged Property, which are not included in the Trust Fund and which are generally subordinate in right of payment to the Easton Town Center Mortgage Loan and the Easton Town Center Pari Passu Companion Loans to the extent set forth in the related Mortgage Loan documents and as provided in the Easton Town Center Intercreditor Agreement.

 

Easton Town Center Whole Loan”: The Easton Town Center Mortgage Loan, together with the Easton Town Center Pari Passu Companion Loans and the Easton Town Center Subordinate Companion Loans, each of which is secured by the same Mortgage on the Easton Town Center Mortgaged Property. References herein to the Easton Town Center Whole Loan shall be construed to refer to the aggregate indebtedness under the Easton Town Center Mortgage Loan, the Easton Town Center Pari Passu Companion Loans and the Easton Town Center Subordinate Companion Loans.

 

EDGAR”: As defined in Section 11.03.

 

EDGAR-Compatible Format”: Any format compatible with EDGAR, including HTML, Word or clean, searchable PDFs.

 

Eligible Account”: Any of the following: (i) a segregated account or accounts maintained with a federal or state chartered depository institution or trust company (including the Trustee or the Certificate Administrator), (A) the long-term deposit rating or long-term unsecured debt obligations of which are rated at least “A2” by Moody’s, if the deposits are to be held in such account for thirty (30) days or more, and the short-term debt obligations of which have a short-term rating of not less than “P-1” from Moody’s, if the deposits are to be held in such account for less than thirty (30) days and (B) the long-term unsecured debt obligations of which are rated at least “A” by Fitch (to the extent rated by Fitch), if the deposits are to be held in such account for thirty (30) days or more, and the short-term debt obligations of which have a short-term rating of not less than “F1” from Fitch (to the extent rated by Fitch), if the deposits are to be held in such account for less than thirty (30) days; (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 rating shall be at least “A2” from Moody’s and “A” from Fitch (to the extent rated by Fitch) (if the deposits are to be held in the account for more

 

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than thirty (30) days) or Wells Fargo Bank, National Association’s short-term deposit or short-term unsecured debt rating shall be at least “P-1” from Moody’s and “F2” from Fitch (to the extent rated by Fitch) (if the deposits are to be held in the account for thirty (30) days or less); (iii) such other account or accounts that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i)(ii) above, with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency for which the minimum ratings set forth in the applicable clause is not satisfied with respect to such account, which account may be an account maintained by or with the Certificate Administrator, the Trustee, either Master Servicer or either Special Servicer; (iv) any other account or accounts not listed in clauses (i)(ii) above with respect to which a Rating Agency Confirmation has been obtained from each and every Rating Agency and a confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any securities related to a Companion Loan, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), which account may be an account maintained by or with the Certificate Administrator, the Trustee, either Master Servicer or either Special Servicer; (v) a segregated trust account or accounts maintained with the corporate trust department of a federal or state chartered depository institution or trust company that has a long-term unsecured debt rating of at least “A2” from Moody’s (if the deposits are to be held in the account for more than thirty (30) days) or a short-term unsecured debt rating of at least “P-1” from Moody’s (if the deposits are to be held in the account for thirty (30) days or less) and that, in either case, has corporate trust powers, acting in its fiduciary capacity, provided that any state chartered depository institution or trust company is subject to regulation regarding fiduciary funds substantially similar to 12 C.F.R. § 9.10(b); or (vi) in the case of Servicing Accounts or reserve accounts with respect to NCB Mortgage Loans with respect to amounts posted with the lender for Escrow Payments, repairs, replacements, capital improvements and/or environmental testing and remediation with respect to the related Mortgaged Property, for ongoing or threatened litigation or for any unit maintenance or rent receivables or negative carry, any account maintained with NCB (provided that, if such account is not otherwise an Eligible Account, NCB has a combined capital and surplus of at least $40,000,000). Eligible Accounts may bear interest. No Eligible Account shall be evidenced by a certificate of deposit, passbook or other similar instrument.

 

Eligible Asset Representations Reviewer”: An institution that (a) is the special servicer, operating advisor or asset representations reviewer on a transaction rated by any of Moody’s, Fitch, KBRA, S&P, DBRS or Morningstar and that has not been a special servicer, operating advisor or asset representations reviewer on a transaction for which any of Moody’s, Fitch, KBRA, S&P, DBRS and Morningstar has qualified, downgraded or withdrawn its rating or ratings of one or more classes of certificates for such transaction citing servicing or other relevant concerns with such special servicer, operating advisor or asset representations reviewer, as applicable, as the sole or material factor in such rating action, (b) can and will make the representations and warranties set forth in Section 6.01(d), (c) is not (and is not affiliated with) a Sponsor, a Mortgage Loan Seller, an originator, either Master Servicer, either Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder or any of their respective 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

 

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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 Certificateholder or any of their respective Affiliates, or have been paid any fees, compensation or other remuneration by any of them in connection with any such services, and (e) does not directly or indirectly, through one or more Affiliates or otherwise, own any interest in any Certificates, any Mortgage Loans, any Companion Loan or any securities backed by a Companion Loan or otherwise have any financial interest in the securitization transaction to which this Agreement relates, other than in fees from its role as Asset Representations Reviewer (or as Operating Advisor, if applicable).

 

Eligible Operating Advisor”: An institution (a) that is a special servicer or operating advisor on a commercial mortgage-backed securities transaction rated by the Rating Agencies (including, in the case of the Operating Advisor, this transaction) but has not been a special servicer or operating advisor on a transaction for which any Rating Agency has qualified, downgraded or withdrawn its rating or ratings of one or more classes of certificates for such transaction citing servicing or other relevant concerns with the special servicer or operating advisor, as applicable, as the sole or a material factor in such rating action; (b) that can and will make the representations and warranties of the Operating Advisor set forth in Section 6.01(c) of this Agreement; (c) that is not (and is not affiliated with) the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, a Mortgage Loan Seller, the Directing Certificateholder, or a depositor, a trustee, a certificate administrator, a master servicer or a special servicer with respect to the securitization of a Companion Loan, or any of their respective Affiliates; (d) 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 a special servicer under this Agreement; and (e) that (i) has been regularly engaged in the business of analyzing and advising clients in commercial mortgage-backed securities matters and has at least five (5) years of experience in collateral analysis and loss projections and (ii) has at least five (5) years of experience in commercial real estate asset management and experience in the workout and management of distressed commercial real estate assets.

 

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

 

Enforcing Servicer”: As defined in Section 2.03(k)(i) of this Agreement.

 

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

 

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

 

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

 

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ERISA Restricted Certificate”: Any Certificate (other than a Class R Certificate) that does not meet the requirements of Prohibited Transaction Exemption 96-22 (as such exemption may be amended from time to time) as of the date of the acquisition of such Certificate by a Plan. As of the Closing Date, each of the Class E-2, Class E, Class F-1, Class F-2, Class F, Class EF, Class G-1, Class G-2, Class G, Class EFG, Class H-1, Class H-2 and Class H Certificates is an ERISA Restricted Certificate.

 

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

 

Euroclear”: The Euroclear System or any successor thereto.

 

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

 

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

 

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Excess Prepayment Interest Shortfall”: The aggregate of any Prepayment Interest Shortfalls resulting from any Principal Prepayments made on the Mortgage Loans to be included in the Available Funds for any Distribution Date that are not covered by the Master Servicers’ Compensating Interest Payment for the related Distribution Date and the portion of the compensating interest payments allocable to any Non-Serviced Mortgage Loan to the extent received from the related Non-Serviced Master Servicer.

 

Exchangeable Certificates”: As defined in Section 5.09(a).

 

Exchangeable Combined Certificate”: As defined in Section 5.09(a).

 

Exchangeable Component”: As defined in Section 5.09(a).

 

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

 

Exchange Percentage Interest”: The Class E-1 Percentage Interest, the Class E-2 Percentage Interest, the Class E-E-1 Exchange Percentage Interest, the Class E-E-2 Exchange Percentage Interest, the Class F-1 Percentage Interest, the Class F-2 Percentage Interest, the Class F-F-1 Exchange Percentage Interest, the Class F-F-2 Exchange Percentage Interest, the Class EF-E-1 Exchange Percentage Interest, the Class EF-E-2 Exchange Percentage Interest, the Class EF-F-1 Exchange Percentage Interest, the Class EF-F-2 Exchange Percentage Interest, the Class G-1 Percentage Interest, the Class G-2 Percentage Interest, the Class G-G-1 Exchange Percentage Interest, the Class G-G-2 Exchange Percentage Interest, the Class EFG-E-1 Exchange Percentage Interest, the Class EFG-E-2 Exchange Percentage Interest, the Class EFG-F-1 Exchange Percentage Interest, the Class EFG-F-2 Exchange Percentage Interest, the Class EFG-G-1 Exchange Percentage Interest, the Class EFG-G-2 Exchange Percentage Interest, the Class H-1 Percentage Interest, the Class H-1 Exchange Percentage Interest, the Class H-2 Percentage Interest and the Class H-2 Exchange Percentage Interest, individually or collectively, as the context may require.

 

Exchange Proportion”: As defined in Section 5.09(a).

 

Excluded Controlling Class Holder”: With respect to any Excluded Controlling Class Loan, the Directing Certificateholder or any Controlling Class Certificateholder, as applicable, that is a Borrower Party with respect to such Excluded Controlling Class Loan. Promptly upon obtaining actual knowledge of the Directing Certificateholder or any Controlling Class Certificateholder becoming an “Excluded Controlling Class Holder”, such Directing Certificateholder or Controlling Class Certificateholder, as applicable, shall provide notice in the form of Exhibit P-1E hereto to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator, which notice shall be physically delivered in accordance with Section 13.05 of this Agreement and shall specifically identify the Excluded Controlling Class Holder and the subject Excluded Controlling Class Loan. Additionally, any Excluded Controlling Class Holder shall also send to the Certificate Administrator a notice substantially in the form of Exhibit P-1F hereto, which notice shall provide each of the CTSLink User ID associated with such Excluded Controlling Class Holder, and which notice shall direct the Certificate Administrator to restrict such Excluded Controlling

 

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Class Holder’s access to the Certificate Administrator’s Website as and to the extent provided in this Agreement. As of the Closing Date, there are no Excluded Controlling Class Holders related to the Trust.

 

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

 

Excluded Information”: With respect to any Excluded Controlling Class Loan, any information solely related to such Excluded Controlling Class Loan, which shall include any Asset Status Reports, Final Asset Status Reports (or summaries thereof), inspection reports related to Specially Serviced Loans conducted by a Special Servicer or any Excluded Special Servicer and which may include any Operating Advisor reports delivered to the Certificate Administrator regarding a Special Servicer’s net present value determination or any Appraisal Reduction calculations delivered pursuant to Section 3.26(d) and Section 3.26(e), and any Officer’s Certificates delivered by the Trustee, the applicable Master Servicer or the applicable Special Servicer, supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance, or such other information and reports designated as Excluded Information by the applicable Special Servicer, the applicable Master Servicer or the Operating Advisor, as applicable, but in each case other than information with respect to such Excluded Controlling Class Loan that is aggregated with information of other Mortgage Loans at a pool level. For the avoidance of doubt, any file or report contained in the CREFC® Investor Reporting Package (CREFC® IRP) (other than the CREFC® Special Servicer Loan File relating to any Excluded Controlling Class Loan) shall not be considered “Excluded Information”. Each of the Master Servicers, the Special Servicers or the Operating Advisor shall deliver any Excluded Information to the Certificate Administrator in accordance with Section 3.33 hereof. For the avoidance of doubt, the Certificate Administrator’s obligation to segregate any information delivered to it under the “Excluded Information” tab on the Certificate Administrator’s Website shall be triggered solely by such information being delivered in the manner provided in Section 3.26 hereof.

 

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

 

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

 

Excluded Special Servicer Information”: With respect to any Excluded Special Servicer Loan, any information solely related to such Excluded Special Servicer Loan and/or the

 

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

 

Excluded Special Servicer Loan”: Any Mortgage Loan or Serviced Whole Loan with respect to which, as of any date of determination, the applicable Special Servicer becomes a Borrower Party. For the avoidance of doubt, there are no Excluded Special Servicer Loans related to the Trust as of the Closing Date.

 

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

 

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

 

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

 

Final Asset Status Report”: With respect to any Specially Serviced Loan, each related Asset Status Report, together with such other data or supporting information provided by the applicable Special Servicer to the Directing Certificateholder which does not include any communication (other than the related Asset Status Report) between the applicable Special Servicer and Directing Certificateholder with respect to such Specially Serviced Loan; provided that, with respect to any Mortgage Loan other than an Excluded Loan, so long as no Control Termination Event has occurred and is continuing, no Asset Status Report shall be considered to be a Final Asset Status Report unless the Directing Certificateholder has either finally approved of and consented to the actions proposed to be taken in connection therewith, or has exhausted all of its rights of approval and consent pursuant to Section 3.19, or has been deemed to have approved or consented to such action or the Asset Status Report is otherwise implemented by the applicable Special Servicer in accordance with this Agreement.

 

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

 

Final Recovery Determination”: A reasonable determination by the applicable Special Servicer, with respect to any Defaulted Loan (and, if applicable, any defaulted Companion Loan) or Corrected Loan or REO Property (other than a Mortgage Loan or REO Property, as the case may be, that was purchased by (i) any of the Mortgage Loan Sellers pursuant to Section 5 of the applicable Mortgage Loan Purchase Agreement, (ii) the applicable Special Servicer or other person pursuant to Section 3.16(b), any Companion Holder or any mezzanine lender pursuant to Section 3.16 or (iii) the applicable Master Servicer, the applicable Special Servicer, the Holders of the Controlling Class, or the Holders of the Class R Certificates

 

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pursuant to Section 9.01) that there has been a recovery of all Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenue and other payments or recoveries that, in the applicable Special Servicer’s judgment, which judgment was exercised without regard to any obligation of such Special Servicer to make payments from its own funds pursuant to Section 3.07(b), will ultimately be recoverable.

 

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

 

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

 

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

 

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

 

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

 

Gain-on-Sale Reserve Account”: A custodial account or accounts (or subaccount of the Distribution Account) created and maintained by the Certificate Administrator, pursuant to Section 3.04(e) on behalf of the Trustee for the benefit of the Certificateholders, which shall initially be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36, Gain-on-Sale Reserve Account”. Any such account shall be an Eligible Account or a subaccount of an Eligible Account.

 

Gas Company Tower & World Center Parking Garage Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of August 6, 2016, by and between the holders of each of the Gas Company Tower & World Center Parking Garage Pari Passu Companion Loans, the holders of the Gas Company Tower & World Center Parking Garage Subordinate Companion Loans and the holder of the Gas Company Tower & World Center Parking Garage Mortgage Loan, relating to the relative rights of such holders of the Gas Company Tower & World Center Parking Garage Whole Loan, as the same may be further amended in accordance with the terms thereof.

 

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Gas Company Tower & World Center Parking Garage Mortgage Loan”: With respect to the Gas Company Tower & World Center Parking Garage Whole Loan, the Mortgage Loan that is included in the Trust Fund (identified as Mortgage Loan Number 18 on the Mortgage Loan Schedule), which is evidenced by promissory note A-2-C, and is pari passu in right of payment with the Gas Company Tower & World Center Parking Garage Pari Passu Companion Loans and senior in right of payment to the Gas Company Tower & World Center Parking Garage Subordinate Companion Loans to the extent set forth in the Gas Company Tower & World Center Parking Garage Intercreditor Agreement.

 

Gas Company Tower & World Center Parking Garage Mortgaged Property”: The Mortgaged Property that secures the Gas Company Tower & World Center Parking Garage Whole Loan.

 

Gas Company Tower & World Center Parking Garage Pari Passu Companion Loans”: With respect to the Gas Company Tower & World Center Parking Garage Whole Loan, the Companion Loans evidenced by the related promissory notes designated as promissory notes A-1-S1, A-1-S2, A-1-S3 and A-2-S and made by the related Mortgagor and secured by the Mortgage on the Gas Company Tower & World Center Parking Garage Mortgaged Property, which are not included in the Trust Fund and which are pari passu in right of payment to the Gas Company Tower & World Center Parking Garage Mortgage Loan to the extent set forth in the related Mortgage Loan documents and as provided in the Gas Company Tower & World Center Parking Garage Intercreditor Agreement.

 

Gas Company Tower & World Center Parking Garage Subordinate Companion Loans”: With respect to the Gas Company Tower & World Center Parking Garage Whole Loan, the Companion Loans evidenced by the related promissory notes designated as promissory notes B-1 and B-2 and made by the related Mortgagor and secured by the Mortgage on the Gas Company Tower & World Center Parking Garage Mortgaged Property, which are not included in the Trust Fund and which are generally subordinate in right of payment to the Gas Company Tower & World Center Parking Garage Mortgage Loan and the Gas Company Tower & World Center Parking Garage Pari Passu Companion Loans to the extent set forth in the related Mortgage Loan documents and as provided in the Gas Company Tower & World Center Parking Garage Intercreditor Agreement.

 

Gas Company Tower & World Center Parking Garage Whole Loan”: the Gas Company Tower & World Center Parking Garage Mortgage Loan, together with the Easton Town Center Pari Passu Companion Loans and the Gas Company Tower & World Center Parking Garage Subordinate Companion Loans, each of which is secured by the same Mortgage on the Gas Company Tower & World Center Parking Garage Mortgaged Property. References herein to the Gas Company Tower & World Center Parking Garage Whole Loan shall be construed to refer to the aggregate indebtedness under the Gas Company Tower & World Center Parking Garage Mortgage Loan, the Gas Company Tower & World Center Parking Garage Pari Passu Companion Loans and the Gas Company Tower & World Center Parking Garage Subordinate Companion Loans.

 

General Master Servicer”: Wells Fargo Bank, National Association, or any successor thereto (as General Master Servicer) appointed as provided herein.

 

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General Special Servicer”: C-III Asset Management LLC, a Delaware limited liability company, or its successor in interest, or any successor special servicer appointed as provided herein (including with respect to any Excluded Special Servicer Loan, if any, the related Excluded Special Servicer appointed pursuant to Section 7.01(g) of this Agreement, as applicable and as the context may require).

 

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 treated as a “grantor trust” under subpart E, part I of subchapter J of the Code, consisting of the assets described in the Preliminary Statement hereto.

 

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

 

Gurnee Mills Intercreditor Agreement”: That certain Agreement Between Note Holders, dated as of November 3, 2016, by and between the holders of each of the Gurnee Mills Pari Passu Companion Loans and the holder of the Gurnee Mills Mortgage Loan, relating to the relative rights of such holders of the Gurnee Mills Whole Loan, as the same may be further amended in accordance with the terms thereof.

 

Gurnee Mills Mortgage Loan”: With respect to the Gurnee Mills Whole Loan, the Mortgage Loan that is included in the Trust Fund (identified as Mortgage Loan 1 on the Mortgage Loan Schedule), which is designated as promissory note A-2A, and is pari passu in right of payment with the Gurnee Mills Pari Passu Companion Loans to the extent set forth in the Gurnee Mills Intercreditor Agreement.

 

Gurnee Mills Mortgaged Property”: The Mortgaged Property that secures the Gurnee Mills Whole Loan.

 

Gurnee Mills Pari Passu Companion Loans”: With respect to the Gurnee Mills Whole Loan, the Companion Loans evidenced by the related promissory notes designated as promissory notes A-1B, A-2B, A-2 and A-4 made by the related Mortgagor and secured by the Mortgage on the Gurnee Mills Mortgaged Property, which are not included in the Trust Fund and which are generally pari passu in right of payment to the Gurnee Mills Mortgage Loan to the extent set forth in the related Mortgage Loan documents and as provided in the Gurnee Mills Intercreditor Agreement.

 

Gurnee Mills Pari Passu Note A-1A”: The Gurnee Mills Pari Passu Companion Loan evidenced by the related promissory note designated as promissory note A-1A. As of the Closing Date, the Gurnee Mills Pari Passu Note A-1A is held by Column Financial, Inc.

 

Gurnee Mills Pooling and Servicing Agreement”: This Agreement, for so long as the Gurnee Mills Whole Loan is serviced pursuant to this Agreement and, on and after the related Servicing Shift Securitization Date, the related Non-Serviced PSA for the Gurnee Mills Pari Passu Note A-1A.

 

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Gurnee Mills Whole Loan”: The Gurnee Mills Mortgage Loan, together with the Gurnee Mills Pari Passu Companion Loans, each of which is secured by the same Mortgage on the Gurnee Mills Mortgaged Property. 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 Pari Passu Companion Loans.

 

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

 

Independent”: When used with respect to any accountants, a Person who is “independent” within the meaning of Rule 2-01(b) of the Commission’s Regulation S-X. When used with respect to any specified Person, any such Person who (i) is in fact independent of the Trustee, the Certificate Administrator, the Depositor, each Master Servicer, each Special Servicer, the Directing Certificateholder, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer and all Affiliates thereof, (ii) does not have any material direct financial interest in or any material indirect financial interest in any of the Trustee, the Certificate Administrator, the Depositor, each Master Servicer, each Special Servicer, the Directing Certificateholder, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer or any Affiliate thereof and (iii) is not connected with the Trustee, the Certificate Administrator, the Depositor, each Master Servicer, each Special Servicer, the Directing Certificateholder, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer or any Affiliate thereof as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions; provided, however, that a Person shall not fail to be Independent of the Trustee, the Certificate Administrator, the Depositor, the Master Servicers, the Special Servicers, the Directing Certificateholder, the Companion Holders or any Affiliate thereof merely because such Person is the beneficial owner of 1% or less of any Class of securities issued by the Trustee, the Certificate Administrator, the Depositor, either Master Servicer, either Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Directing Certificateholder, the Companion Holders or any Affiliate thereof, as the case may be, so long as such ownership constitutes less than 1% of the total assets of such Person. For the avoidance of doubt, the exception in the proviso above for ownership of 1% or less of any Class of Certificates shall not apply with respect to the Operating Advisor or the Asset Representations Reviewer.

 

Independent Contractor”: Either (i) any Person that would be an “independent contractor” with respect to the Trust within the meaning of Section 856(d)(3) of the Code if the Trust were a real estate investment trust (except that the ownership test set forth in that Section shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of any

 

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Class of Certificates, or such other interest in any Class of Certificates as is set forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the Certificate Administrator, either Master Servicer, any Companion Holder or the Trust, delivered to the Trustee, any Companion Holder, the Certificate Administrator and the Master Servicers), so long as the Trust does not receive or derive any income from such Person and provided that the relationship between such Person and the Trust is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5) (except that none of the Master Servicers nor the Special Servicers shall be considered to be an Independent Contractor under the definition in this clause (i) unless an Opinion of Counsel has been delivered to the Trustee and the Certificate Administrator to that effect) or (ii) any other Person (including a Master Servicer or a Special Servicer) upon receipt by the Trustee, the Certificate Administrator, the Operating Advisor and the Master Servicers of an Opinion of Counsel, which shall be at no expense to the Trustee, the Certificate Administrator, the Master Servicers, the Operating Advisor or the Trust, to the effect that the taking of any action in respect of any REO Property by such Person, subject to any conditions therein specified, that is otherwise herein contemplated to be taken by an Independent Contractor will not cause such REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code or cause any income realized in respect of such REO Property to fail to qualify as Rents from Real Property.

 

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

 

Initial Purchasers”: Wells Fargo Securities, LLC, Barclays Capital Inc., Academy Securities, Inc. and Citigroup Global markets Inc.

 

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

 

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

 

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

 

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

 

Insurance and Condemnation Proceeds”: All proceeds paid under any Insurance Policy or in connection with the full or partial condemnation of a Mortgaged Property, in either case, to the extent such proceeds are not applied to the restoration of the related Mortgaged Property or released to the Mortgagor or any tenants or ground lessors, in either case, in

 

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accordance with the Servicing Standard (and in the case of any Mortgage Loan with a related Companion Loan, to the extent any portion of such proceeds are received by the applicable Master Servicer or Certificate Administrator in connection with such Mortgage Loan, pursuant to the allocations set forth in the related Intercreditor Agreement) and the REMIC Provisions.

 

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

 

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

 

Intercreditor Agreement”: Each of the Plaza America I & II Intercreditor Agreement, Conrad Indianapolis Intercreditor Agreement, the Easton Town Center Intercreditor Agreement, the Gas Company Tower & World Center Parking Garage Intercreditor Agreement, the Mall at Turtle Creek Intercreditor Agreement, the One & Two Corporate Plaza Intercreditor Agreement, the Central Park Retail Intercreditor Agreement, the Gurnee Mills Intercreditor Agreement and the 101 Hudson Street Intercreditor Agreement, and any intercreditor agreement entered into in connection with the issuance to the direct or indirect equity holders in the Mortgagor of any existing mezzanine indebtedness or any future mezzanine indebtedness permitted under the related Mortgage Loan documents.

 

Interest Accrual Amount”: With respect to any Distribution Date and any Class of Regular Certificates (other than any Exchangeable Combined Certificates) and any Trust Components, the amount of interest for the related Interest Accrual Period accrued at the Pass-Through Rate for such Class of Certificates or Trust Components on the Certificate Balance or Notional Amount, as applicable, for such Class immediately prior to that Distribution Date. Calculations of interest for each Interest Accrual Period will be made on 30/360 basis.

 

Interest Accrual Period”: For each Distribution Date, the calendar month prior to the month in which that Distribution Date occurs.

 

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

 

For purposes of clause (B) above, the Excess Prepayment Interest Shortfall, if any, for each Distribution Date shall be allocated to each Class of Regular Certificates (other

 

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than any Exchangeable Combined Certificates) or Trust Component in an amount equal to the product of (i) the amount of such Excess Prepayment Interest Shortfall and (ii) a fraction, the numerator of which is the Interest Accrual Amount for such Class for such Distribution Date and the denominator of which is the aggregate Interest Accrual Amounts for all Classes of Regular Certificates and Trust Components for such Distribution Date.

 

Interest Reserve Account”: The trust account or subaccount of the Distribution Account created and maintained by the Certificate Administrator pursuant to Section 3.04(b) initially in the name of “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36, Interest Reserve Account”, into which the amounts set forth in Section 3.21 shall be deposited directly and which must be an Eligible Account or subaccount of an Eligible Account.

 

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

 

Interested Person”: As of the date of any determination, the Depositor, any Master Servicer, any Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator, the Trustee, the Directing Certificateholder, any Sponsor, any Borrower Party, any Independent Contractor engaged by the Special Servicer, or any known Affiliate of any of the preceding entities. With respect to a Whole Loan if it is a Defaulted Loan, the Depositor, any Master Servicer, any Special Servicer (or any Independent Contractor engaged by such Special Servicer), or the trustee for the securitization of a Companion Loan, and each related Companion Holder or its representative, any holder of a related mezzanine loan, or any known Affiliate of any such party described above.

 

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

 

Investment Representation Letter”: As defined in Section 5.03(e), a form of which is attached hereto as Exhibit C.

 

Investor-Based Exemption”: Any of PTCE 84-14 (for transactions by independent “qualified professional asset managers”), PTCE 91-38 (for transactions by bank collective investment funds), PTCE 90-1 (for transactions by insurance company pooled separate accounts), PTCE 95-60 (for transactions by insurance company general accounts) or PTCE 96-23 (for transactions effected by “in-house asset managers”) or a similar exemption under Similar Law.

 

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Investor Certification”: A certificate (which may be in electronic form) substantially in the form of Exhibit P-1A, Exhibit P-1B, Exhibit P-1C and Exhibit P-1D to this Agreement or in the form of an electronic certification contained on the Certificate Administrator’s Website (which may be a click-through confirmation), representing (i) that such Person executing the certificate is a Certificateholder, the Directing Certificateholder (to the extent such Person is not a Certificateholder), a beneficial owner of a Certificate, a prospective purchaser of a Certificate or a Companion Holder (or any investment advisor, manager or other representative of the foregoing), (ii) that either (a) such Person is not a Borrower Party, in which case such Person shall have access to all the reports and information made available to Certificateholders via the Certificate Administrator’s Website hereunder, or (b) such Person is a Borrower Party in which case (1) if such Person is the Directing Certificateholder or 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 Excluded Information as set forth herein, or (2) if such Person is not the Directing Certificateholder or a Controlling Class Certificateholder, such Person shall only receive access to the Statements to Certificateholders 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 Excluded Controlling Class Holder (i) shall be permitted to obtain in accordance with Section 4.02(f) of this Agreement any Excluded Information relating to any Excluded Controlling Class Loan with respect to which such Excluded Controlling Class Holder is not a Borrower Party (if such Excluded Information is not otherwise available to such Excluded Controlling Class Holder via the Certificate Administrator’s Website) 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 Excluded Controlling Class Loan. The Certificate Administrator may require that Investor Certifications be re-submitted from time to time in accordance with its policies and procedures and shall restrict access to the Certificate Administrator’s Website to any mezzanine lender upon notice from any party to this Agreement that such mezzanine lender has accelerated the related mezzanine loan or commenced foreclosure proceedings against the equity collateral pledged to secure the related mezzanine loan.

 

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

 

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

 

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

 

Late Collections”: With respect to any Mortgage Loan, Whole Loan or Companion Loan, all amounts received thereon prior to the related Determination Date, whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds or otherwise, which

 

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

 

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

 

Liquidation Event”: With respect to any Mortgage Loan or with respect to any REO Property (and the related REO Loan), any of the following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery Determination is made with respect to such Mortgage Loan; (iii) such Mortgage Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 5 of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is purchased by either Special Servicer, or by any Companion Holder or any mezzanine lender (as applicable) pursuant to Section 3.16 (and the related Intercreditor Agreement, as applicable); (v) such Mortgage Loan is purchased by either Special Servicer, either Master Servicer, the Holders of the majority of the Controlling Class or the Holders of the Class R Certificates pursuant to Section 9.01 or acquired by the Sole Certificateholder in exchange for its Certificates pursuant to Section 9.01; or (vi) such Mortgage Loan is sold by either Special Servicer pursuant to the terms of this Agreement.

 

Liquidation Expenses”: All customary, reasonable and necessary “out of pocket” costs and expenses incurred by either Special Servicer in connection with a liquidation of any Specially Serviced Loan or REO Property (except with respect to a Non-Serviced Mortgaged Property) pursuant to Section 3.16 (including, without limitation, legal fees and expenses, committee or referee fees and, if applicable, brokerage commissions and conveyance taxes).

 

Liquidation Fee”: A fee payable to the applicable Special Servicer with respect to each Specially Serviced Loan or REO Property (except with respect to a Non-Serviced Mortgaged Property) as to which such Special Servicer receives (i) a full, partial or discounted payoff from the related Mortgagor or (ii) any Liquidation Proceeds or Insurance and Condemnation Proceeds (including with respect to the related Companion Loan, if applicable), or REO Property (in any case, other than amounts for which a Workout Fee has been paid, or

 

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will be payable), equal to the product of the Liquidation Fee Rate and the proceeds of such full, partial or discounted payoff or other partial payment or the Liquidation Proceeds or Insurance and Condemnation Proceeds (net of the related costs and expenses associated with the related liquidation) related to such liquidated Specially Serviced Loan or REO Property, as the case may be; provided, however, that no Liquidation Fee shall be payable with respect to (a) the purchase of any Specially Serviced Loan by either Special Servicer or any Affiliate thereof (except if such Affiliate purchaser is the Directing Certificateholder or any Affiliate thereof; provided, however, that prior to a Control Termination Event, if the Directing Certificateholder or an Affiliate thereof purchases any Specially Serviced Loan within ninety (90) days after the applicable Special Servicer delivers to the Directing Certificateholder for its approval the initial Asset Status Report with respect to such Specially Serviced Loan, such Special Servicer will not be entitled to a Liquidation Fee in connection with such purchase by the Directing Certificateholder or its Affiliates), (b) any event described in clause (iv) of the definition of “Liquidation Proceeds” (or any substitution in lieu of a repurchase) so long as such repurchase or substitution occurs prior to the termination of the Extended Cure Period, (c) any event described in clauses (v), (vi) and (vii) of the definition of “Liquidation Proceeds”, as long as, with respect to a purchase pursuant to clause (vi) of the definition of “Liquidation Proceeds”, a purchase occurs within ninety (90) days of such holder’s purchase option first becoming exercisable during that period prior to such Mortgage Loan becoming a Corrected Loan pursuant to the related Intercreditor Agreement, (d) with respect to a Serviced Companion Loan, (x) a repurchase of such Serviced Companion Loan by the applicable Mortgage Loan Seller for a breach of a representation or warranty or for a defective or deficient mortgage loan documentation under an Other Pooling and Servicing Agreement within the time period (or extension thereof) provided for such repurchase of such repurchase occurs prior to the termination of the extended resolution period provided therein or (y) a purchase of such Serviced Companion Loan by any applicable party to the Other Pooling and Servicing Agreement pursuant to a clean-up call or similar liquidation of the Other Securitization; or (e) if a Mortgage Loan or Serviced Whole Loan becomes a Specially Serviced Loan solely because of a Servicing Transfer Event described in clause (i) of the definition of “Servicing Transfer Event”, Liquidation Proceeds are received within ninety (90) days following the related Maturity Date as a result of such Mortgage Loan or Serviced Whole Loan being refinanced or otherwise repaid in full (but, in the event that a Liquidation Fee is not payable due to the application of any of clauses (a) through (e) above, each Special Servicer may still collect and retain a Liquidation Fee and similar fees from the related Mortgagor to the extent provided for in, or not prohibited by, the related loan documents); provided that the Liquidation Fee with respect to any Specially Serviced Loan will be reduced by the amount of any Excess Modification Fees paid by or on behalf of the related Mortgagor with respect to the related Mortgage Loan and any related Companion Loan, as applicable, or REO Property and received by the applicable Special Servicer as compensation within the prior twelve (12) months, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee. No Liquidation Fee shall be payable in connection with a Loss of Value Payment by a Mortgage Loan Seller, if the applicable Mortgage Loan Seller makes such Loss of Value Payment within 90 days of receipt of notice of a breach (and giving effect to an extension period of 90 days, if applicable).

 

Liquidation Fee Rate”: A rate equal to 1.00% with respect to any Specially Serviced Loan (and each related Serviced Companion Loan) and REO Property; provided that if such rate would result in an aggregate Liquidation Fee less than $25,000, then the Liquidation

 

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Fee Rate will be equal to the lesser of (i) 3.00% and (ii) such lower rate as would result in an aggregate Liquidation Fee equal to $25,000.

 

Liquidation Proceeds”: Cash amounts received by or paid to either Master Servicer or either Special Servicer in connection with: (i) the liquidation (including a payment in full) of a Mortgaged Property or other collateral constituting security for a Defaulted Loan or defaulted Companion Loan, if applicable, through a trustee’s sale, foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof required to be released to the related Mortgagor in accordance with applicable law and the terms and conditions of the related Mortgage Note and Mortgage; (ii) the realization upon any deficiency judgment obtained against a Mortgagor; (iii) any sale of (A) a Specially Serviced Loan pursuant to Section 3.16(a) or (B) any REO Property pursuant to Section 3.16(b); (iv) the repurchase of a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to Section 5 of the related Mortgage Loan Purchase Agreement; (v) the purchase of a Specially Serviced Loan or REO Property by the Holders of the majority of the Controlling Class, either Special Servicer, either Master Servicer or the Holders of the Class R Certificates pursuant to Section 9.01; (vi) the purchase of a Mortgage Loan or an REO Property by (a) the applicable Subordinate Companion Holder or (b) the related mezzanine lender pursuant to Section 3.16 and the related Intercreditor Agreement; or (vii) the transfer of any Loss of Value Payments from the Loss of Value Reserve Fund to the Collection Account in accordance with Section 3.05(g) of this Agreement (provided that, for the purpose of determining the amount of the Liquidation Fee (if any) payable to the applicable Special Servicer in connection with such Loss of Value Payment, the full amount of such Loss of Value Payment shall be deemed to constitute “Liquidation Proceeds” from which the Liquidation Fee (if any) is payable as of such time such Loss of Value Payment is made by the applicable Mortgage Loan Seller). With respect to any Whole Loan, as used in this Agreement, Liquidation Proceeds shall refer to such portion of Liquidation Proceeds to the extent allocable to the related Mortgage Loan or related Companion Loan, as applicable, pursuant to the terms of the related Intercreditor Agreement.

 

Loan-Specific Directing Certificateholder”: With respect to a Servicing Shift Whole Loan, the “Controlling Holder”, the “Directing Certificateholder”, the “Directing Holder”, the “Directing Lender” or any analogous concept set forth under the related Intercreditor Agreement. Prior to the applicable Servicing Shift Securitization Date, the Loan-Specific Directing Certificateholder with respect to the related Servicing Shift Whole Loan will be the holder of the related Controlling Companion Loan. On and after the applicable Servicing Shift Securitization Date, there will be no Loan-Specific Directing Certificateholder under the Pooling and Servicing Agreement with respect to the related Servicing Shift Whole Loan. As of the Closing Date, Column Financial, Inc. is expected to be the initial Loan-Specific Directing Certificateholder with respect to the Gurnee Mills Whole Loan and Wells Fargo Bank, National Association is expected to be the initial Loan-Specific Directing Certificateholder with respect to the 101 Hudson Street Whole Loan.

 

Loss of Value Payment”: As defined in Section 2.03(b) 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 3.04(k) of

 

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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 Amount”: As defined in Section 4.01(c).

 

Lower-Tier Principal Amount”: With respect to any Class of Lower-Tier Regular Interests, (i) on or prior to the first Distribution Date, an amount equal to the Original Lower-Tier Principal Amount of such Class as specified in the Preliminary Statement hereto, and (ii) as of any date of determination after the first Distribution Date, an amount equal to the Certificate Balance of the Class of Related Certificates or Related Trust Component on the Distribution Date immediately prior to such date of determination (determined as adjusted pursuant to Section 1.02(iii)), and as set forth in Section 4.01(c)).

 

Lower-Tier Regular Interests”: Any of the Class LA1, Class LA2, Class LA3, Class LA4, Class LASB, Class LAS, Class LB, Class LC, Class LD, Class LE1, Class LE2, Class LF1, Class LF2, Class LG1, Class LG2, Class LH1 and Class LH2 Uncertificated Interests.

 

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

 

Lower-Tier REMIC Distribution Account”: The segregated account, accounts or sub-accounts created and maintained by the Certificate Administrator (on behalf of the Trustee) pursuant to Section 3.04(b) in trust for the Certificateholders, which shall initially be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36, Lower-Tier REMIC Distribution Account”. Any such account, accounts or sub-accounts shall be an Eligible Account.

 

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

 

MAI”: Member of the Appraisal Institute.

 

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

 

Mall at Turtle Creek Intercreditor Agreement”: That certain Agreement Between Note Holders, dated as of July 7, 2016, by and between the holders of the respective

 

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promissory notes evidencing the Mall at Turtle Creek Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

Mall at Turtle Creek Mortgage Loan”: With respect to the Mall at Turtle Creek Whole Loan, the Mortgage Loan that is included in the Trust Fund (identified as Mortgage Loan Number 7 on the Mortgage Loan Schedule), which is designated as promissory note A-2, and is pari passu in right of payment with the Mall at Turtle Creek Pari Passu Companion Loan to the extent set forth in the Mall at Turtle Creek Intercreditor Agreement.

 

Mall at Turtle Creek Mortgaged Property”: The Mortgaged Property that secures the Mall at Turtle Creek Whole Loan.

 

Mall at Turtle Creek Pari Passu Companion Loan”: With respect to the Mall at Turtle Creek Whole Loan, the Companion Loan evidenced by the related promissory note designated as promissory note A-1 and made by the related Mortgagor and secured by the Mortgage on the Mall at Turtle Creek Mortgaged Property, which is not included in the Trust Fund and which is pari passu in right of payment to the Mall at Turtle Creek Mortgage Loan to the extent set forth in the related Mortgage Loan documents and as provided in the Central Park Retail Intercreditor Agreement.

 

Mall at Turtle Creek Whole Loan”: The Mall at Turtle Creek Mortgage Loan, together with the Mall at Turtle Creek Pari Passu Companion Loan, each of which is secured by the same Mortgage on the Mall at Turtle Creek Mortgaged Property. References herein to the Mall at Turtle Creek Whole Loan shall be construed to refer to the aggregate indebtedness under the Mall at Turtle Creek Mortgage Loan and the Mall at Turtle Creek Pari Passu Companion Loan.

 

Master Servicer”: With respect to (a) any Mortgage Loan (other than an NCB Mortgage Loan), any REO Property acquired by the Trust with respect to a Mortgage Loan (other than an NCB Mortgage Loan) and any matters relating to the foregoing, the General Master Servicer and (b) any NCB Mortgage Loan, any REO Property acquired by the Trust with respect to an NCB Mortgage Loan and any matters relating to the foregoing, the NCB Master Servicer.

 

Master Servicer Decision”: As defined in Section 3.18(m).

 

Material Defect”: With respect to any Mortgage Loan, a Defect in any Mortgage File or a Breach, which Defect or Breach, as the case may be, materially and adversely affects the value of such Mortgage Loan, the value of the related Mortgaged Property or the interests of the Trustee or any Certificateholder therein or causes such Mortgage Loan to be other than a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective obligation to be treated as a “qualified mortgage”.

 

Maturity Date”: With respect to any Mortgage Loan, Whole Loan or Companion Loan, as of any date of determination, the date on which the last payment of principal is due and payable under the related Mortgage Note, after taking into account all

 

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Principal Prepayments received prior to such date of determination, but without giving effect to (i) any acceleration of the principal of such Mortgage Loan, Whole Loan or Companion Loan by reason of default thereunder or (ii) any Grace Period permitted by the related Mortgage Note.

 

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

 

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

 

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

 

Modification Fees”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Whole Loan, any and all fees with respect to a modification, extension, waiver or amendment that modifies, extends, amends or waives any term of the Mortgage Loan documents and/or related Serviced Companion Loan documents (as evidenced by a signed writing) agreed to by the applicable Master Servicer or the applicable Special Servicer, as applicable (other than all assumption fees, assumption application fees, consent fees, defeasance fees, Special Servicing Fees, Liquidation Fees or Workout Fees).

 

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

 

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

 

Mortgage File”: With respect to each Mortgage Loan or Companion Loan, if applicable, but subject to Section 2.01, collectively the following documents:

 

(i)         the original Mortgage Note, endorsed on its face or by allonge to the Mortgage Note, without recourse, to “Pay to the order of Wilmington Trust, National Association, as Trustee for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36, without recourse, representation or warranty” or in blank and further showing a complete, unbroken chain of

 

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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 original or a copy of the Mortgage, together with an original or copy of any intervening Assignments of Mortgage, in each case with evidence of recording indicated thereon or certified to have been submitted for recording;

 

(iii)       an original Assignment of Mortgage in blank or in favor of “Wilmington Trust, National Association, as Trustee for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36” (or in the case of any Serviced Whole Loan, in its capacity as “Lead Securitization Note Holder” or similar capacity under the related Intercreditor Agreement on behalf of the related Serviced Companion Noteholders) 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 of Mortgage, a copy thereof certified to be the copy of such Assignment of Mortgage submitted to or to be submitted for recording);

 

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

 

(v)        an original Assignment of any related Assignment of Leases (if such item is a document separate from the Mortgage) in blank or in favor of “Wilmington Trust, National Association, as Trustee for the benefit of the registered holders of Wells Fargo Commercial Mortgage Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36” (or in the case of any Serviced Whole Loan, in its capacity as “Lead Securitization Note Holder” or similar capacity under the related Intercreditor Agreement on behalf of the related Serviced Companion Noteholders) 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 thereof certified to be the copy of such Assignment submitted or to be submitted for recording);

 

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

 

(vii)      originals or copies of all modification, consolidation, assumption, written assurance and substitution agreements in those instances in which the

 

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terms or provisions of the Mortgage or Mortgage Note have been modified or the Mortgage Loan has been assumed or consolidated;

(viii)     the original or a copy of the policy or certificate of lender’s title insurance (which may be in electronic form) 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 filed copies (bearing evidence of filing) or evidence of filing of any Uniform Commercial Code 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 of any financing statement executed and filed in favor of the applicable Mortgage Loan Seller or an Affiliate thereof in the relevant jurisdiction (or, if the related Mortgage Loan Seller is responsible for the filing of that Assignment, a copy thereof certified to be the copy of such Assignment submitted or to be submitted for recording);

 

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

 

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

 

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

 

(xiv)      other than with respect to the NCB Co-op Mortgage Loans, the original or a copy of any property management agreement relating to such Mortgage Loan or Serviced Whole Loan;

 

(xv)       the original or a copy of any franchise agreements and comfort letters or similar agreements relating to such Mortgage Loan or Serviced Whole Loan and, with respect to any franchise agreement, comfort letter or similar agreement, any assignment of such agreements or any notice to the franchisor of the transfer of such Mortgage Loan or Serviced Whole Loan and/or request for the issuance of a new comfort letter in favor of the Trustee, in each case as applicable;

 

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

 

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(xvii)     the original or a copy of any related mezzanine intercreditor agreement;

 

(xviii)   a copy of all related environmental insurance policies; and

 

(xix)      a list related to such Mortgage Loan indicating the related Mortgage Loan documents included in the related Mortgage File as of the Closing Date (the “Mortgage Loan Checklist”);

 

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

 

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Non-Serviced PSA (in such form as was delivered to the custodian under the related Non-Serviced PSA).

 

Mortgage Loan”: Each of the mortgage loans (which, for the avoidance of doubt, includes each Crossed Mortgage Loan Group, each of which, for the purposes of this Agreement, shall be treated as one Mortgage Loan, provided that each individual Crossed Underlying Loan within any such Crossed Mortgage Loan Group shall not be included in this definition of Mortgage Loan) transferred and assigned to the Trustee pursuant to Section 2.01 and to be held by the Trust. As used herein, the term “Mortgage Loan” includes the related Mortgage Note, Mortgage and other documents contained in the related Mortgage File and any related agreements. The term “Mortgage Loan” shall, as of any date of determination, include any Qualified Substitute Mortgage Loan that has replaced a Mortgage Loan pursuant to Section 2.03 and exclude any such replaced Mortgage Loan. For the avoidance of doubt, no Retained Defeasance Rights and Obligations will be part of a “Mortgage Loan” or an asset of the Trust.

 

Mortgage Loan Checklist”: As defined in the definition of Mortgage File.

 

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

 

Mortgage Loan Schedule”: The list of Mortgage Loans transferred on the Closing Date to the Trustee as part of the Trust Fund, attached hereto as Exhibit B, as any such schedule may be amended from time to time in connection with a substitution under Section 2.03 and in accordance with the relevant Mortgage Loan Purchase Agreement, and which list sets forth the following information with respect to each Mortgage Loan so transferred:

 

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

 

(ii)        the Mortgagor’s name;

 

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

 

(iv)       the Mortgage Rate in effect at origination;

 

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

 

(vi)       the original principal balance;

 

(vii)      the Cut-off Date Balance;

 

(viii)     the (a) original term to stated maturity, (b) remaining term to stated maturity and (c) Maturity Date;

 

(ix)       the original and remaining amortization terms;

 

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

 

(xi)        the applicable Servicing Fee Rate;

 

(xii)       whether the Mortgage Loan is a 30/360 Mortgage Loan or an Actual/360 Mortgage Loan;

 

(xiii)      whether such Mortgage Loan is secured by a fee simple interest in the related Mortgaged Property; by the Mortgagor’s leasehold interest, and a fee simple interest, in the related Mortgaged Property; or solely by a leasehold interest in the related Mortgaged Property;

 

(xiv)      identifying any Mortgage Loans with which such Mortgage Loan is cross-defaulted or cross-collateralized;

 

(xv)       the name of the related Mortgage Loan Seller;

 

(xvi)      the name of the related Mortgage Loan sponsor;

 

(xvii)     whether the related Mortgage Loan is secured by a letter of credit (and, if so, the amount of such letter of credit);

 

(xviii)    amount of any reserve or escrowed funds that were deposited at origination and any ongoing periodic deposit requirements;

 

(xix)      number of grace days;

 

(xx)       the type of cash management agreement or lock-box agreement in place;

 

(xxi)      the general property type of the related Mortgaged Property;

 

(xxii)     whether such Mortgage Loan provides for defeasance and if so, the period during which defeasance may occur and the periods when any Principal Prepayments must be accompanied by any Prepayment Premium or Yield Maintenance Charge;

 

(xxiii)    the Anticipated Repayment Date, if applicable;

 

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

 

(xxv)     the number of units, rooms, pads or square feet with respect to each Mortgaged Property;

 

(xxvi)    the Administrative Cost Rate; and

 

(xxvii)   the Due Date.

 

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Such Mortgage Loan Schedule shall also set forth the aggregate of the amounts described under clause (vii) above for all of the Mortgage Loans. Such list may be in the form of more than one list, collectively setting forth all of the information required.

 

Mortgage Loan Seller”: Each of (i) Barclays Bank PLC, a public limited company registered in England and Wales, or its successor in interest, (ii)  Wells Fargo Bank, National Association, a national banking association, or its successor in interest, (iii) C-III Commercial Mortgage LLC, a Delaware limited liability company, or its successor in interest, (iv) Rialto Mortgage Finance, LLC, a Delaware limited liability company, or its successor in interest, (v) NCB, a national banking association, or its successor in interest, (vi) The Bancorp Bank, a Delaware state-chartered bank and (vii)  Basis Real Estate Capital II, LLC, a Delaware limited liability company, or its successor in interest.

 

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

 

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

 

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

 

Mortgagor”: The obligor or obligors on a Mortgage Note, including without limitation, any Person that has acquired the related Mortgaged Property and assumed the obligations of the original obligor under the Mortgage Note and including in connection with any Mortgage Loan that utilizes an indemnity deed of trust structure, the borrower and the Mortgaged Property owner/payment guarantor/mortgagor individually and collectively, as the context may require.

 

NCB”: National Cooperative Bank, N.A., a national banking association, or its successor-in-interest.

 

NCB Co-op Mortgage Loan”: Any NCB Mortgage Loan.

 

NCB Master Servicer”: NCB, or its successor-in-interest, or any successor NCB master servicer appointed as provided herein.

 

NCB Mortgage Loans”: Those Mortgage Loans sold to the Depositor pursuant to the related Mortgage Loan Purchase Agreement by NCB and indicated as an NCB Mortgage Loan on the Mortgage Loan Schedule.

 

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NCB Special Servicer”: NCB, or its successor-in-interest, or any successor NCB special servicer appointed as provided herein (including with respect to any Excluded Special Servicer Loan, if any, the related Excluded Special Servicer appointed pursuant to Section 7.01(g) of this Agreement, as applicable and as the context may require).

 

NCB Subordinate Debt Conditions”: With respect to an NCB Co-op Mortgage Loan and any encumbrance of the related Mortgaged Property with a subordinate mortgage, the following conditions: (i) each of the subordinate mortgage loans, or the sole subordinate mortgage loan, to be secured by such subordinate mortgage is made by NCB or any Affiliate thereof (ii) such subordinate mortgage is expressly made in compliance with the underwriting standards which NCB customarily employs in connection with making subordinate mortgages for its own mortgage loan portfolio, (iii) the aggregate outstanding principal balance of the NCB Co-op Mortgage Loan, any other existing loans secured by a mortgage then encumbering the related Mortgaged Property and the proposed new subordinate mortgage loan shall not exceed 40% of the Appraised Value of the related Mortgaged Property, (iv) NCB or any Affiliate thereof that originates the subordinate mortgage loan, executes and delivers to the Trustee for inclusion in the Mortgage File an intercreditor agreement and subordination agreement with respect to such subordinate mortgage in substantially the form of Exhibit LL hereto or in such other form as shall be acceptable to the NCB Special Servicer and, unless a Control Termination Event has occurred and is continuing, the Directing Certificateholder (other than with respect to an Excluded Loan) (provided that the Trustee shall have no responsibility for determining the sufficiency or validity thereof), (v) if the subordinate mortgage loan will not be a fully amortizing loan, the stated maturity date of the subordinate mortgage loan shall be no earlier than the maturity date of the related NCB Co-op Mortgage Loan, (vi) the subordinate mortgage loan is made principally for the purpose of funding capital expenditures, major repairs or reserves at or with respect to the Mortgaged Property in question, (vii) NCB or any Affiliate thereof that originates the subordinate mortgage loan receives borrower legal opinions as to authority and enforceability customarily required of borrowers in connection with the origination of similar mortgage loans; and (viii) the aggregate amount of subordinate debt encumbering the Mortgaged Property in question (including the proposed new subordinate mortgage debt and any other existing loans secured by a mortgage then encumbering the related Mortgaged Property, but excluding the Mortgage Loan in question) does not exceed $7,500,000.

 

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

 

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

 

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

 

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

 

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

 

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.

 

Nonrecoverable Advance”: Any Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. For the avoidance of doubt, Workout-Delayed Reimbursement Amounts shall constitute Nonrecoverable Advances only when the Person making such determination in accordance with the procedures specified herein, 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 Collections, Default Interest, Insurance and Condemnation Proceeds, Liquidation Proceeds or any other recovery on or in respect of such Mortgage Loan or the related REO Property (without

 

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giving effect to potential recoveries on deficiency judgments or recoveries from guarantors), or (b) has determined that such Workout-Delayed Reimbursement Amount, along with any other Workout-Delayed Reimbursement Amounts (that have not been reimbursed to the party that made such Advance) or unreimbursed Nonrecoverable Advances, would not be ultimately recoverable from the principal portion of future general collections on the Mortgage Loans and REO Properties.

 

Nonrecoverable P&I Advance”: Any P&I Advance previously made or proposed to be made in respect of a Mortgage Loan (including any Non-Serviced Mortgage Loan) or REO Loan (other than any portion of an REO Loan related to a Companion Loan) which, in the reasonable judgment of the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, will not be ultimately recoverable, together with any accrued and unpaid interest thereon at the Reimbursement Rate, from Late Collections or any other recovery on or in respect of such Mortgage Loan or REO Loan; provided, however, that the applicable Special Servicer may, at its option (with respect to any Specially Serviced Loan), make a determination in accordance with the Servicing Standard, that any P&I Advance previously made or proposed to be made is a Nonrecoverable P&I Advance and shall deliver to the applicable Master Servicer (and with respect to a Serviced Mortgage Loan, to any Other Servicer, and with respect to a Non-Serviced Mortgage Loan, to the related Non-Serviced Master Servicer and Non-Serviced Special Servicer), the Certificate Administrator, the Trustee, the Operating Advisor and the 17g-5 Information Provider notice of such determination. Any such determination may be conclusively relied upon by, but shall not be binding upon, the applicable Master Servicer and the Trustee, provided, however, that such Special Servicer shall have no such obligation to make an affirmative determination that any P&I Advance is or would be recoverable and in the absence of a determination by such Special Servicer that such P&I Advance is or would be a Nonrecoverable P&I Advance, such decision shall remain with the applicable Master Servicer or Trustee, as applicable. If a Special Servicer makes a determination that only a portion, and not all, of any previously made or proposed P&I Advance is a Nonrecoverable P&I Advance, the applicable Master Servicer and the Trustee shall have the right to make its own subsequent determination that any remaining portion of any such previously made or proposed P&I Advance is a Nonrecoverable P&I Advance. With respect to any Non-Serviced Whole Loan, if any Non-Serviced Master Servicer, Non-Serviced Trustee or Non-Serviced Special Servicer, as applicable, in connection with a securitization of the related Non-Serviced Companion Loan determines that a principal and interest advance with respect to the related Non-Serviced Companion Loan, if made, would be nonrecoverable, such determination shall not be binding on the applicable Master Servicer and the Trustee as it relates to any proposed P&I Advance with respect to the related Non-Serviced Mortgage Loan. Similarly, with respect to the related Non-Serviced Mortgage Loan, if the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, determines that any P&I Advance with respect to a related Non-Serviced Mortgage Loan, if made, would be a Nonrecoverable P&I Advance, such determination shall not be binding on the related Non-Serviced Master Servicer, Non-Serviced Special Servicer and related Non-Serviced Trustee as it relates to any proposed P&I Advance with respect to the related Non-Serviced Companion Loan (unless the related Non-Serviced PSA provides otherwise). In making such recoverability determination, the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, will be entitled (a) to consider (among other things) (i) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Companion Loan, as applicable, as it

 

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may have been modified and (ii) the related Mortgaged Properties in their “as-is” or then-current conditions and occupancies, as modified by such party’s assumptions (consistent with the Servicing Standard in the case of the applicable Master Servicer or the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) regarding the possibility and effects of future adverse changes with respect to such Mortgaged Properties, (b) to estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer and the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) future expenses, (c) to estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer and the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) the timing of recoveries and (d) to give due regard to the existence of any Nonrecoverable Advances which, at the time of such consideration, the recovery of which are being deferred or delayed by the applicable Master Servicer, in light of the fact that related proceeds are a source of recovery not only for the Advance under consideration but also a potential source of recovery for such delayed or deferred Advance. In addition, any Person, in considering whether a P&I Advance is a Nonrecoverable Advance, will be entitled to give due regard to the existence of any outstanding Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans, the reimbursement of which, at the time of such consideration, is being deferred or delayed by a Master Servicer or the Trustee because there is insufficient principal available for such recovery, in light of the fact that proceeds on the related Mortgage Loan are a source of recovery not only for the P&I Advance under consideration, but also as a potential source of reimbursement of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may be being deferred or delayed. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and, consistent with the Servicing Standard, in the case of the applicable Master Servicer or in its good faith business judgment in the case of the Trustee (solely in its capacity as Trustee), may obtain at the expense of the Trust any reasonably required analysis, Appraisals or market value estimates or other information for making a recoverability determination. Absent bad faith, the applicable Master Servicer’s, the applicable Special Servicer’s or the Trustee’s determination as to the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders. The determination by the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, that a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any updated or changed recoverability determination, shall be evidenced by an Officer’s Certificate delivered by either the applicable Special Servicer or the applicable Master Servicer to the other and to the Trustee, the Certificate Administrator, the Directing Certificateholder (but only prior to the occurrence of a Consultation Termination Event and only with respect to any Mortgage Loan other than an Excluded Loan) (and in the case of a Serviced Mortgage Loan, any Other Servicer), the Operating Advisor (but only in the case of a Special Servicer) and the Depositor, or by the Trustee to the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and the Certificate Administrator (and, in the case of a Serviced Mortgage Loan, any Other Servicer). The Officer’s Certificate shall set forth such determination of nonrecoverability and the considerations of the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, forming the basis of such

 

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determination (which shall be accompanied by, to the extent available, related income and expense statements, rent rolls (or, with respect to NCB Co-op Mortgage Loans, maintenance schedules), occupancy status, property inspections and any other information used by such Master Servicer, such Special Servicer or the Trustee, as applicable, to make such determination and shall include any existing Appraisal of the related Mortgage Loan or the related Mortgaged Property). The Trustee shall be entitled to conclusively rely on the applicable Master Servicer’s or the applicable Special Servicer’s determination that a P&I Advance is or would be nonrecoverable, and each Master Servicer shall be entitled to conclusively rely on the applicable Special Servicer’s determination that a P&I Advance is or would be nonrecoverable. In the case of a cross-collateralized Mortgage Loan (if any), such recoverability determination shall take into account the cross-collateralization of the related cross-collateralized Mortgage Loan.

 

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

 

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and, consistent with the Servicing Standard, in the case of the applicable Master Servicer or in its good faith business judgment in the case of the Trustee (solely in its capacity as Trustee), may obtain at the expense of the Trust any reasonably required analysis, Appraisals or market value estimates or other information for making a recoverability determination. Absent bad faith, the applicable Master Servicer’s, the applicable Special Servicer’s or the Trustee’s determination as to the recoverability of any Servicing Advance shall be conclusive and binding on the Certificateholders. The determination by the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, that a Nonrecoverable Servicing Advance has been made or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, or any updated or changed recoverability determination, shall be evidenced by an Officer’s Certificate delivered by either the applicable Special Servicer or the applicable Master Servicer to the other and to the Trustee, the Certificate Administrator, the Directing Certificateholder (but only prior to the occurrence of a Consultation Termination Event and only with respect to any Mortgage Loan other than an Excluded Loan) (and in the case of a Serviced Mortgage Loan, any Other Servicer), the Operating Advisor (but only in the case of a Special Servicer) and the Depositor, or by the Trustee to the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and the Certificate Administrator (and in the case of a Serviced Mortgage Loan, any Other Servicer); provided, however, that the applicable Special Servicer may, at its option, make a determination in accordance with the Servicing Standard, that any Servicing Advance previously made or proposed to be made is a Nonrecoverable Servicing Advance and shall deliver to the applicable Master Servicer (and with respect to a Serviced Mortgage Loan, to any Other Servicer), the Certificate Administrator, the Trustee, the Operating Advisor and the 17g-5 Information Provider notice of such determination. Any such determination may be conclusively relied upon by, but shall not be binding upon, the applicable Master Servicer and the Trustee, provided, however, that the applicable Special Servicer shall have no such obligation to make an affirmative determination that any Servicing Advance is or would be recoverable and in the absence of a determination by the applicable Special Servicer that such Servicing Advance is or would be a Nonrecoverable Servicing Advance, such decision shall remain with the applicable Master Servicer or the Trustee, as applicable. If the applicable Special Servicer makes a determination that only a portion, and not all, of any previously made or proposed Servicing Advance is a Nonrecoverable Servicing Advance, the applicable Master Servicer and the Trustee shall each have the right to make its own subsequent determination that any remaining portion of any such previously made or proposed Servicing Advance is a Nonrecoverable Servicing Advance. The Officer’s Certificate shall set forth such determination of nonrecoverability and the considerations of the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, forming the basis of such determination (which shall be accompanied by, to the extent available, related income and expense statements, rent rolls (or, with respect to NCB Co-op Mortgage Loans, maintenance schedules), occupancy status, property inspections and any other information used by such Master Servicer, such Special Servicer or the Trustee, as applicable, to make such determination and shall include any existing Appraisal with respect to the related Mortgage Loan, Serviced Companion Loan or related Mortgaged Property). The applicable Special Servicer shall promptly furnish any party required to make Servicing Advances hereunder with any information in its possession regarding the Specially Serviced Loans and REO Properties as such party required to make Servicing Advances may reasonably request for purposes of making recoverability determinations. The Trustee shall be entitled to conclusively rely on the

 

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applicable Master Servicer’s or the applicable Special Servicer’s determination that a Servicing Advance is or would be nonrecoverable, and the applicable Master Servicer shall be entitled to conclusively rely on the applicable Special Servicer’s determination that a Servicing Advance is or would be nonrecoverable. Notwithstanding anything herein to the contrary, if the applicable Special Servicer requests that the applicable Master Servicer make a Servicing Advance, such Master Servicer may conclusively rely on such request as evidence that such advance is not a Nonrecoverable Servicing Advance; provided, however, that such Special Servicer shall not be entitled to make such a request more frequently than once per calendar month with respect to Servicing Advances other than emergency advances (although such request may relate to more than one Servicing Advance). In the case of a cross-collateralized Mortgage Loan (if any), such recoverability determination shall take into account the cross-collateralization of the related cross-collateralized Mortgage Loan. The determination as to the recoverability of any servicing advance or property protection advance previously made or proposed to be made in respect of a Non-Serviced Whole Loan shall be made by the related Non-Serviced Master Servicer, Non-Serviced Special Servicer or Non-Serviced Trustee, as the case may be, pursuant to the related Non-Serviced PSA.

 

Non-Book Entry Certificates”: As defined in Section 5.02(c).

 

Non-Registered Certificate”: Unless and until registered under the Securities Act, any Class X-D, Class D, Class E-1, Class E-2, Class E, Class F-1, Class F-2, Class F, Class EF, Class G-1, Class G-2, Class G, Class EFG, Class H-1, Class H-2, Class H and Class R.

 

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

 

Non-Serviced Companion Loan”: Each of the Easton Town Center Pari Passu Companion Loans, the Easton Town Center Subordinate Companion Loans, the Gas Company Tower & World Center Parking Garage Pari Passu Companion Loans, the Gas Company Tower & World Center Parking Garage Subordinate Companion Loans, the Mall at Turtle Creek Pari Passu Companion Loan, the One & Two Corporate Plaza Pari Passu Companion Loan, the Central Park Retail Pari Passu Companion Loan, the Gurnee Mills Pari Passu Companion Loans (on and after the related Servicing Shift Securitization Date) and the 101 Hudson Street Pari Passu Companion Loans (on and after the related Servicing Shift Securitization Date).

 

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

 

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

 

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

 

Non-Serviced Indemnified Parties”: As defined in Section 6.04(i).

 

Non-Serviced Intercreditor Agreement”: Each of the Easton Town Center Intercreditor Agreement, the Gas Company Tower & World Center Parking Garage Intercreditor Agreement, the Mall at Turtle Creek Intercreditor Agreement, the One & Two Corporate Plaza Intercreditor Agreement, the Central Park Retail Intercreditor Agreement, the Gurnee Mills

 

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Intercreditor Agreement (on and after the related Servicing Shift Securitization Date) and the 101 Hudson Street Intercreditor Agreement (on and after the related Servicing Shift Securitization Date).

 

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

 

Non-Serviced Mortgage Loan”: Each of the Easton Town Center Mortgage Loan, the Gas Company Tower & World Center Parking Garage Mortgage Loan, the Mall at Turtle Creek Mortgage Loan, the One & Two Corporate Plaza Mortgage Loan, the Central Park Retail Mortgage Loan, the Gurnee Mills Mortgage Loan (on and after the related Servicing Shift Securitization Date)and the 101 Hudson Street Mortgage Loan (on and after the related Servicing Shift Securitization Date).

 

Non-Serviced Mortgaged Property”: Each of the Easton Town Center Mortgaged Property, the Gas Company Tower & World Center Parking Garage Mortgaged Property, the Mall at Turtle Creek Mortgaged Property, the One & Two Corporate Plaza Mortgaged Property, the Central Park Retail Mortgaged Property, the Gurnee Mills Mortgaged Property (on and after the related Servicing Shift Securitization Date) and the 101 Hudson Street Mortgaged Property (on and after the related Servicing Shift Securitization Date).

 

Non-Serviced Operating Advisor”: The “Operating Advisor” (if any) under a Non-Serviced PSA.

 

Non-Serviced Pari Passu Companion Loan”: Each of the Easton Town Center Pari Passu Companion Loan, the Gas Company Tower & World Center Parking Garage Pari Passu Companion Loan, the Mall at Turtle Creek Pari Passu Companion Loan, the One & Two Corporate Plaza Pari Passu Companion Loan, the Central Park Retail Pari Passu Companion Loan, the Gurnee Mills Pari Passu Companion Loans (on and after the related Servicing Shift Securitization Date) and the 101 Hudson Street Pari Passu Companion Loans (on and after the related Servicing Shift Securitization Date).

 

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

 

Non-Serviced Primary Servicing Fee Rate”: A per annum rate equal to, with respect to (i) the Easton Town Center Mortgage Loan, 0.00125%, (ii) the Mall at Turtle Creek Mortgage Loan, 0.00250%, (iii) the Central Park Retail Mortgage Loan, 0.00250%, (iv) the Gas Company Tower & World Center Parking Garage & World Trade Center Parking Garage Mortgage Loan, 0.00125%, (v) the One & Two Corporate Plaza Mortgage Loan, 0.00250%, (vi) the Gurnee Mills Mortgage Loan (on and after the related Servicing Shift Securitization Date), 0.00250% and (vii) the 101 Hudson Street Mortgage Loan (on and after the related Servicing Shift Securitization Date), 0.00250%.

 

Non-Serviced PSA”: With respect to (i) the Easton Town Center Whole Loan, the BBCMS 2016-ETC Trust and Servicing Agreement, (ii) the Gas Company Tower & World Center Parking Garage Whole Loan, the COMM 2016-GCT Trust and Servicing Agreement, (iii) the Mall at Turtle Creek Whole Loan, the WFCM 2016-C35 Pooling and Servicing Agreement, (iv) the One & Two Corporate Plaza Whole Loan, the WFCM 2016-LC24 Pooling and Servicing

 

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Agreement, (v) the Central Park Retail Whole Loan, the WFCM 2016-LC24 Pooling and Servicing Agreement, (vi) the Gurnee Mills Whole Loan, on and after the related Servicing Shift Securitization Date, the Gurnee Mills Pooling and Servicing Agreement and (vii) the 101 Hudson Street Whole Loan, on and after the related Servicing Shift Securitization Date, the 101 Hudson Street Pooling and Servicing Agreement.

 

Non-Serviced Special Servicer”: The applicable “Special Servicer” of a Non-Serviced Whole Loan under a Non-Serviced PSA.

 

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

 

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

 

Non-Serviced Whole Loan”: Each of Easton Town Center Whole Loan, the Gas Company Tower & World Center Parking Garage Whole Loan, the Mall at Turtle Creek Whole Loan, the One & Two Corporate Plaza Whole Loan, the Central Park Retail Whole Loan, the Gurnee Mills Whole Loan (on and after the related Servicing Shift Securitization Date) and the 101 Hudson Street Whole Loan (on and after the related Servicing Shift Securitization Date).

 

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

 

Non-Specially Serviced Loan”: Any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Companion Loan that is not a Specially Serviced Loan.

 

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

 

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

 

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

 

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

 

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

 

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

 

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OCC”: Office of the Comptroller of the Currency.

 

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

 

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

 

One & Two Corporate Plaza Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of September 16, 2016, by and between the holders of the respective promissory notes evidencing the One & Two Corporate Plaza Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

One & Two Corporate Plaza Mortgage Loan”: With respect to the One & Two Corporate Plaza Whole Loan, the Mortgage Loan that is included in the Trust Fund (identified as Mortgage Loan Number 28 on the Mortgage Loan Schedule), which is designated as promissory notes A-2, and is pari passu in right of payment with the One & Two Corporate Plaza Pari Passu Companion Loan to the extent set forth in the One & Two Corporate Plaza Intercreditor Agreement.

 

One & Two Corporate Plaza Mortgaged Property”: The Mortgaged Property that secures the One & Two Corporate Plaza Whole Loan.

 

One & Two Corporate Plaza Pari Passu Companion Loan”: With respect to the One & Two Corporate Plaza Whole Loan, the Companion Loan evidenced by the related promissory note designated as promissory note A-1 and made by the related Mortgagor and secured by the Mortgage on the One & Two Corporate Plaza Mortgaged Property, which is not included in the Trust Fund and which is pari passu in right of payment to the One & Two Corporate Plaza Mortgage Loan to the extent set forth in the related Mortgage Loan documents and as provided in the One & Two Corporate Plaza Intercreditor Agreement.

 

One & Two Corporate Plaza Whole Loan”: The One & Two Corporate Plaza Mortgage Loan, together with the One & Two Corporate Plaza Pari Passu Companion Loan, each of which is secured by the same Mortgage on the One & Two Corporate Plaza Mortgaged Property. References herein to the One & Two Corporate Plaza Whole Loan shall be construed to refer to the aggregate indebtedness under the One & Two Corporate Plaza Mortgage Loan and the One & Two Corporate Plaza Pari Passu Companion Loan.

 

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

 

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

 

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

 

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

 

Operating Advisor Fee”: With respect to each Mortgage Loan and REO Loan (but excluding each Non-Serviced Mortgage Loan, Servicing Shift Mortgage Loan and each Companion Loan), the fee payable to the Operating Advisor pursuant to Section 3.26(i).

 

Operating Advisor Fee Rate”: With respect to each Interest Accrual Period related to any applicable Distribution Date, a per annum rate of (i) 0.00236%, except with respect to the Plaza America I & II Mortgage Loan or the Conrad Indianapolis Mortgage Loan, (ii) 0.0039% with respect to the Plaza America I & II Mortgage Loan and (iii) 0.0055% with respect to the Conrad Indianapolis Mortgage Loan.

 

Operating Advisor Standard”: The requirement that the Operating Advisor must act solely on behalf of the Trust and in the best interest of, and for the benefit of, the Certificateholders and, with respect to any Serviced Whole Loan (other than a Servicing Shift Whole Loan) for the benefit of the holders of the related Companion Loan (as a collective whole as if such Certificateholders and Companion Holders constituted a single lender), and not to any particular Class of Certificateholders (as determined by the Operating Advisor in the exercise of its good faith and reasonable judgment), but without regard to any conflict of interest arising from any relationship that the Operating Advisor or any of its Affiliates may have with any of the underlying Mortgagors, any Sponsor, any Mortgage Loan Seller, the Depositor, each Master Servicer, each Special Servicer, the Asset Representations Reviewer, the Directing Certificateholder or any of their Affiliates.

 

Operating Advisor Termination Event”: Any of the following events, whether any such event is voluntary or involuntary or is effected by operation of law or pursuant to any

 

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judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body:

 

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

 

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

 

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

 

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

 

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

 

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

 

Opinion of Counsel”: A written opinion of counsel, who may, without limitation, be salaried counsel for the Depositor, a Master Servicer, a Special Servicer, the

 

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

 

Original Certificate Balance”: With respect to any Class of Principal Balance Certificates, the initial aggregate principal amount thereof as of the Closing Date, in each case as specified in the Preliminary Statement and with respect to each Trust Component, as provided in Section 5.09(a).

 

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

 

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

 

Other Asset Representations Reviewer”: Any asset representations reviewer under an Other Pooling and Servicing Agreement.

 

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

 

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

 

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

 

Other Pooling and Servicing Agreement”: Any trust and servicing agreement or pooling and servicing agreement that creates a trust whose assets include any Serviced Companion Loan. For the avoidance of doubt, each of the Plaza America I & II Pooling and Servicing Agreement and the Conrad Indianapolis Pooling and Servicing Agreement shall be an Other Pooling and Servicing Agreement.

 

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Other Securitization”: As defined in Section 11.06.

 

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

 

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

 

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

 

P&I Advance”: As to any Mortgage Loan or REO Loan (but not any related Companion Loan), any advance made by the applicable Master Servicer or the Trustee, as applicable, pursuant to Section 4.03 or Section 7.05.

 

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

 

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

 

Pari Passu Companion Loan Holder”: Any holder of record of any Serviced Pari Passu Companion Loan or Non-Serviced Pari Passu Companion Loan.

 

Pass-Through Rate”: Any of the Class A-1 Pass-Through Rate, the Class A-2 Pass-Through Rate, the Class A-3 Pass-Through Rate, the Class A-4 Pass-Through Rate, the Class A-SB Pass-Through Rate, the Class A-S Pass-Through Rate, the Class B Pass-Through Rate, the Class C Pass-Through Rate, the Class D Pass-Through Rate, the Class E-1 Pass-Through Rate, the Class E-2 Pass-Through Rate, the Class F-1 Pass-Through Rate, the Class F-2 Pass-Through Rate, the Class G-1 Pass-Through Rate, the Class G-2 Pass-Through Rate, the Class H-1 Pass-Through Rate, the Class H-2 Pass-Through Rate, the Class H Pass-Through Rate, the Class X-A Pass-Through Rate, the Class X-B Pass-Through Rate or the Class X-D Pass-Through Rate, as the case may be.

 

PCAOB”: The Public Company Accounting Oversight Board.

 

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

 

Percentage Interest”: As to any Certificate (other than the Class R Certificates), the percentage interest evidenced thereby in distributions required to be made with respect to the related Class. With respect to any Certificate (other than the Class R Certificates), the

 

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percentage interest is equal to the Denomination as of the Closing Date of such Certificate divided by the Original Certificate Balance or Original Notional Amount, as applicable, of such Class of Certificates as of the Closing Date. For these purposes on any date of determination, (i) the “Denomination as of the Closing Date” of any Exchangeable Certificate or any Exchangeable Combined Certificate received in an exchange will be determined as if such Certificate was part of the related Class on the Closing Date, (ii) the “Denomination as of the Closing Date” of any Exchangeable Certificate or any Exchangeable Combined Certificate surrendered in an exchange will be determined as if such Certificate was not part of the related Class on the Closing Date and (iii) the “initial Certificate Balance” of the related Class of Exchangeable Certificates or Exchangeable Combined Certificates will be determined as if such Class consisted only of the Certificates composing the Class on that date of determination and such Certificates had been outstanding as of the Closing Date. With respect to a Class R Certificate, the percentage interest is set forth on the face thereof.

 

Performance Certification”: As defined in Section 11.06.

 

Performing Party”: As defined in Section 11.12.

 

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

 

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

 

(i)        direct obligations of, and obligations fully guaranteed as to timely payment of principal and interest by, the United States of America, Fannie Mae, Freddie Mac or any agency or instrumentality of the United States of America, the obligations of which are backed by the full faith and credit of the United States of America that mature in one (1) year or less from the date of acquisition; provided that any obligation of, or guarantee by, Fannie Mae or Freddie Mac, other than an unsecured senior debt obligation 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; 

 

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(ii)        time deposits, unsecured certificates of deposit, or bankers’ acceptances that mature in one (1) year or less after the date of issuance and are issued or held by any depository institution or trust company (including the Trustee) incorporated or organized under the laws of the United States of America or any State thereof and subject to supervision and examination by federal or state banking authorities with respect to which (A) with respect to Moody’s, (I) in the case of such investments with maturities of thirty (30) days or less, the short-term debt obligations of which are rated in the highest short-term rating category by Moody’s or the long-term debt obligations of which are rated at least “A2” by Moody’s, (II) 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 in the highest short-term rating category by Moody’s and the long-term obligations of which are rated at least “A1” by Moody’s, (III) 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 in the highest short-term rating category by Moody’s and the long-term obligations of which are rated at least “Aa3” by Moody’s and (IV) in the case of such investments with maturities of more than six (6) months, the short-term obligations of which are rated in the highest short-term rating category by Moody’s and the long-term obligations of which are rated “Aaa” by Moody’s (or, in each case, if permitted by the related Mortgage Loan, if not rated by Moody’s, otherwise acceptable to Moody’s, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the then current ratings assigned to the Certificates) and (B) with respect to Fitch and Morningstar, the commercial paper or other short-term debt obligations of such depository institution or trust company are rated in the highest rating categories of each of Fitch and Morningstar (in the case of Morningstar, if rated by Morningstar); or, in each case, or such other rating as would not result in the downgrading, withdrawal or qualification of the then-current rating assigned by each Rating Agency to any Class of Certificates (or, insofar as there is then outstanding any class of Serviced Companion Loan Securities that is then rated by such rating agency, such class of securities) as evidenced in writing;

 

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

 

(iv)       debt obligations bearing interest or sold at a discount issued by any corporation incorporated under the laws of the United States of America or any state thereof which, (A) if such debt obligations have a term of three months or less, (1) the short-term obligations of which corporation are rated in the highest short-term debt rating category of Fitch and Morningstar (if then rated by Morningstar) and (2) the short-term obligations of which corporation are rated in the highest short-term rating category by Moody’s or the long-term obligations of which corporation are rated at least “A2” by Moody’s, (B) if such debt obligations have a term of more than three months and not in excess of six months, the short-term obligations of which corporation are rated in the highest short-term rating category by each Rating Agency and the long-term obligations of which corporation are rated at least “Aa3” by Moody’s and (C) if such debt obligations have a term of more than six months, the short-term obligations of which corporation are

 

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rated in the highest short-term rating category by each Rating Agency and the long-term obligations of which corporation are rated “Aaa” by Moody’s (or, in the case of any such Rating Agency as set forth in subclauses (A) through (C) above, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency and Morningstar); provided, however, that securities issued by any particular corporation will not be Permitted Investments to the extent that investment therein will cause the then-outstanding principal amount of securities issued by such corporation and held in the accounts established hereunder to exceed 10% of the sum of the aggregate principal balance and the aggregate principal amount of all Permitted Investments in such accounts;

 

(v)       commercial paper of any corporation incorporated under the laws of the United States or any state thereof (or of any corporation not so incorporated, provided that the commercial paper is United States Dollar denominated and amounts payable thereunder are not subject to any withholding imposed by any non-United States jurisdiction) (1) in the case of such investments with maturities of 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 Morningstar (if then rated by Morningstar) 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 months or less, but more than 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 months or less, but more than three 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 months or less, but more than three 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 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 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) (or such lower rating as is the subject of a Rating Agency Confirmation and Morningstar);

 

(vi)      money market funds (including the Federated Prime Obligation Money Market Fund, US Bank Long Term Eurodollar Sweep or the Wells Fargo Government Money Market Fund), rated in the highest rating categories of each Rating Agency (if so rated by each such Rating Agency (and if not rated by any such Rating Agency, an equivalent rating (or higher) by at least two (2) NRSROs (which may include Fitch, KBRA, DBRS, Moody’s, Morningstar and/or S&P)) and the highest money market fund category by Moody’s (or, if not rated by Moody’s, otherwise acceptable to such Rating Agency and Morningstar, as confirmed in a Rating Agency Confirmation relating to the Certificates), which may include the investments referred to in clause (i) above if so

 

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qualified that (a) have substantially all of their assets invested continuously in the types of investments referred to in clause (i) above and (b) have net assets of not less than $5,000,000,000;

 

(vii)     any other demand, money market or time deposit, obligation, security or investment, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i)(vi) above with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency for which the minimum ratings set forth in the applicable clause is not satisfied with respect to such demand, money market or time deposit, obligation, security or investment and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any securities related to a Companion Loan, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25); and

 

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

 

provided, however, that each Permitted Investment qualifies as a “cash flow investment” pursuant to Section 860G(a)(6) of the Code, and that (a) it shall have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (b) any such investment that provides for a variable rate of interest must have an interest rate that is tied to a single interest rate index plus a fixed spread, if any, and move proportionately with such index, (c) any such investment must not be subject to liquidation prior to maturity, and (d) any such investment must not be purchased at a premium over par; and provided, further, however, that no such instrument shall be a Permitted Investment (a) if such instrument evidences principal and interest payments derived from obligations underlying such instrument and the interest payments with respect to such instrument provide a yield to maturity at the time of acquisition of greater than 120% of the yield to maturity at par of such underlying obligations or (b) if such instrument may be redeemed at a price below the purchase price; and provided, further, however, that no amount beneficially owned by any Trust REMIC (even if not yet deposited in the Trust) may be invested in investments (other than money market funds) treated as equity interests for federal income tax purposes, unless the applicable Master Servicer receives an Opinion of Counsel, at its own expense, to the effect that such investment will not adversely affect the status of any Trust REMIC.

 

Permitted Special Servicer/Affiliate Fees”: Any commercially reasonable treasury management fees, banking fees, title agency fees, insurance commissions or fees and appraisal fees received or retained by either of the Special Servicers or any of their respective Affiliates in connection with any services performed by such party with respect to any Mortgage Loan and Serviced Companion Loan (including any related REO Property) in accordance with this Agreement.

 

Permitted Transferee”: Any Person or any agent thereof other than (a) a Disqualified Organization, (b) any other Person so designated by the Certificate Registrar who is

 

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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 either Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding, (c) a Person that is a Disqualified Non-U.S. Tax Person, (d) any partnership if any of its interests are (or under the partnership agreement are permitted to be) owned, directly or indirectly (other than through a U.S. corporation), by a Disqualified Non-U.S. Tax Person or (e) a U.S. Tax Person with respect to whom income from the Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the transferee or any other U.S. Tax Person.

 

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

 

Plan”: As defined in Section 5.03(m).

 

Plaza America I & II Intercreditor Agreement”: That certain Agreement Between Note Holders, dated as of October 13, 2016, by and between the holders of the respective promissory notes evidencing the Plaza America I & II, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

Plaza America I & II Mortgage Loan”: With respect to the Plaza America I & II Whole Loan, the Mortgage Loan that is included in the Trust Fund (identified as Mortgage Loan Number 3 on the Mortgage Loan Schedule), which is evidenced by promissory note A-1 and is pari passu in right of payment with the Plaza America I & II Pari Passu Companion Loan to the extent set forth in the Plaza America I & II Intercreditor Agreement.

 

Plaza America I & II Mortgaged Property”: The Mortgaged Property that secures the Plaza America I & II Whole Loan.

 

Plaza America I & II Pari Passu Companion Loan”: With respect to the Plaza America I & II Center Whole Loan, the Companion Loan evidenced by the related promissory note designated as promissory note A-2 and made by the related Mortgagor and secured by the Mortgage on the Plaza America I & II Mortgaged Property, which is not included in the Trust Fund and which is pari passu in right of payment to the Plaza America I & II Mortgage Loan to the extent set forth in the related Mortgage Loan documents and as provided in the Plaza America I & II Intercreditor Agreement.

 

Plaza America I & II Pooling and Servicing Agreement”: Any pooling and servicing agreement that creates a trust whose assets include the Plaza America I & II Pari Passu Companion Loan.

 

Plaza America I & II Whole Loan”: The Plaza America I & II Street Mortgage Loan, together with the Plaza America I & II Pari Passu Companion Loan, each of which is secured by the same Mortgage on the Plaza America I & II Mortgaged Property. References herein to the Plaza America I & II Whole Loan shall be construed to refer to the aggregate indebtedness under the Plaza America I & II Mortgage Loan and the Plaza America I & II Pari Passu Companion Loan.

 

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

 

Prepayment Assumption”: A “constant prepayment rate” of 0% used for determining the accrual of original issue discount and market discount, if any, and the amortization premium, if any, on the Certificates for federal income tax purposes; provided that it is assumed that each Mortgage Loan with an Anticipated Repayment Date prepays on such date.

 

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

 

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

 

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Subordinate Companion Loan and then to the related Mortgage Loan and any related Serviced Pari Passu Companion Loan.

 

Prepayment Premium”: With respect to any Mortgage Loan, any premium, fee or other additional amount (other than a Yield Maintenance Charge) paid or payable, as the context requires, by a borrower in connection with a principal prepayment on, or other early collection of principal of, that Mortgage Loan or any successor REO Loan with respect thereto (including any payoff of a Mortgage Loan by a mezzanine lender on behalf of the subject borrower if and as set forth in the related Intercreditor Agreement).

 

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

 

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

 

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

 

Principal Balance Certificates”: Each of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class A-S, Class B, Class C, Class D, Class E-1, Class E-2, Class E, Class F-1, Class F-2, Class F, Class EF, Class G-1, Class G-2, Class G, Class EFG, Class H-1, Class H-2 and Class H Certificates.

 

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

 

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clauses (A) and (B) above, if any of the amounts that were reimbursed from principal collections on the Mortgage Loans (including REO Loans) are subsequently recovered on the related Mortgage Loan (or REO Loan), such recovery will increase the Principal Distribution Amount for the Distribution Date related to the period in which such recovery occurs).

 

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

 

Principal Shortfall”: For any Distribution Date after the initial Distribution Date with respect to the Mortgage Loans, the amount, if any, by which (a) the related Principal Distribution Amount for the preceding Distribution Date, exceeds (b) the aggregate amount actually distributed on the preceding Distribution Date in respect of such Principal Distribution Amount. The Principal Shortfall for the initial Distribution Date will be zero. If Exchangeable Certificates are exchanged for Exchangeable Combined Certificates, then all Principal Shortfalls that would otherwise be distributable to such exchanged Exchangeable Certificates shall be deemed allocable to such Exchangeable Combined Certificates, without duplication. Similarly, if Exchangeable Combined Certificates are exchanged for Exchangeable Certificates, then all Principal Shortfalls that would otherwise be distributable to such Exchangeable Combined Certificates shall be deemed allocable to such Exchangeable Certificates, without duplication.

 

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

 

Privileged Information”: Any (i) correspondence between the Directing Certificateholder and a Special Servicer related to any Specially Serviced Loan (other than with respect to any Excluded Loan) or the exercise of the Directing Certificateholder’s consent or consultation rights under this Agreement, (ii) strategically sensitive information that the Special Servicer has reasonably determined could compromise the Trust’s position in any ongoing or future negotiations with the related Mortgagor or other interested party and (iii) information subject to attorney-client privilege. Each Master Servicer, each Special Servicer, the Operating Advisor and the Asset Representations Reviewer shall be entitled to rely on any identification of materials as “attorney-client privileged” without liability for any such reliance hereunder.

 

Privileged Information Exception”: With respect to any Privileged Information, at any time (a) such Privileged Information becomes generally available 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, each Master Servicer, each Special Servicer

 

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(including, for the avoidance of doubt, any Excluded Special Servicer), the Trustee, the Certificate Administrator, any Additional Servicer designated by a Master Servicer or a Special Servicer, the Operating Advisor, any Affiliate of the Operating Advisor designated by the Operating Advisor, the Asset Representations Reviewer, any Companion Holder who provides an Investor Certification, any Non-Serviced Master Servicer, any Other Servicer, any Person (including the Directing Certificateholder) who provides the Certificate Administrator with an Investor Certification and any NRSRO (including any Rating Agency) that provides the Certificate Administrator with an NRSRO Certification, which Investor Certification and NRSRO Certification may be submitted electronically via the Certificate Administrator’s Website; provided, however, that in no event may a Borrower Party (other than a Borrower Party that is a Special Servicer) be entitled to receive (i) if such party is the Directing Certificateholder or any Controlling Class Certificateholder, any Excluded Information via the Certificate Administrator’s Website (unless a loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loan(s)), and (ii) if such party is not the Directing Certificateholder or any Controlling Class Certificateholder, any information other than the Distribution Date Statement. In determining whether any Person is an Additional Servicer or an Affiliate of the Operating Advisor, the Certificate Administrator may rely on direction by either Master Servicer, either Special Servicer, any Mortgage Loan Seller or the Operating Advisor, as the case may be.

 

Notwithstanding anything to the contrary in this Agreement, if a Special Servicer becomes a Borrower Party, such Special Servicer shall nevertheless be a Privileged Person; provided that such Special Servicer (i) shall not view or otherwise retrieve any Excluded Special Servicer Information specific to the related Excluded Special Servicer Loan, (ii) shall not directly or indirectly provide any information related to the related Excluded Special Servicer Loan to (A) the related Borrower Party, (B) any of such Special Servicer’s employees or personnel or any of its Affiliate 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 (iii) shall maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) and clause (ii) above; provided, further, that nothing in this Agreement shall be construed as an obligation of either Master Servicer or the Certificate Administrator to restrict access by a Special Servicer or any Excluded Special Servicer to any information related to any Excluded Special Servicer Loan and in no case shall either Master Servicer or the Certificate Administrator be held liable if a Special Servicer accesses any Excluded Special Servicer Information relating to the Excluded Special Servicer Loan; provided, further, however, that any Excluded Controlling Class Holder shall be permitted to obtain in accordance with Section 4.02(f) of this Agreement any Excluded Information relating to any Excluded Controlling Class Loan with respect to which such Excluded Controlling Class Holder is not a Borrower Party (if such Excluded Information is not otherwise available to such Excluded Controlling Class Holder via the Certificate Administrator’s Website).

 

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

 

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

 

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

 

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

 

Prospectus”: The Prospectus, dated October 25, 2016.

 

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

 

PTCE”: Prohibited Transaction Class Exemption.

 

Purchase Price”: With respect to any Mortgage Loan (or any related REO Loan) (including, to the extent required pursuant to the final paragraph hereof, any related Companion Loan) to be purchased pursuant to (A) Section 5 of the related Mortgage Loan Purchase Agreement by the related Mortgage Loan Seller, (B) Section 3.16, or (C) Section 9.01, a price, without duplication, equal to:

 

(i)         the outstanding principal balance of such Mortgage Loan (or any related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)) as of the date of purchase; plus

 

(ii)        all accrued and unpaid interest on the Mortgage Loan (or any related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)), at the related Mortgage Rate in effect from time to time (excluding any portion of such interest that represents Default Interest), to, but not including, the Due Date therefor immediately preceding or coinciding with the Determination Date for the Collection Period of purchase; plus

 

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

 

(iv)       if such Mortgage Loan (or related REO Loan) is being repurchased or substituted by the related Mortgage Loan Seller, pursuant to Section 5 of the applicable Mortgage Loan Purchase Agreement, all reasonable out-of-pocket expenses reasonably incurred or to be incurred by the applicable Master Servicer, the applicable Special Servicer, the Depositor, the Certificate Administrator or the Trustee in respect of the omission, breach or defect giving rise to the repurchase or substitution obligation, including any expenses arising out of the enforcement of the repurchase or substitution obligation, including, without limitation, legal fees and expenses and any additional trust fund expenses relating to such Mortgage Loan (or related REO Loan); provided, however, that such out-of-pocket expenses shall not include expenses incurred by Certificateholders or Certificate Owners in instituting an Asset Review Vote Election, in taking part in an Asset Review vote or in exercising such Certificateholder’s or Certificate Owner’s, as applicable, rights under the dispute resolution mechanics pursuant to Section 2.03(l) hereof;

 

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

 

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

 

Solely with respect to any Serviced Whole Loan to be sold pursuant to Section 3.16(a)(iii), “Purchase Price” shall mean the amount calculated in accordance with the preceding sentence in respect of the related Whole Loan, including, for such purposes, the Mortgage Loan and the related Companion Loan, as applicable. With respect to any REO Property to be sold pursuant to Section 3.16(b), “Purchase Price” shall mean the amount calculated in accordance with the second preceding sentence in respect of the related REO Loan (including any related Companion Loan). With respect to any sale pursuant to Section 3.16(a)(ii) or Section 3.16(e) or for purposes of calculating any Gain-on-Sale Proceeds, the “Purchase Price” shall be allocated between the related Mortgage Loan and Companion Loan, as applicable, in accordance with, and shall be equal to the amount provided pursuant to, the provisions of the related Intercreditor Agreement. Notwithstanding the foregoing, with respect to any repurchase pursuant to subclause (A) and subclause (C) hereof, the “Purchase Price” shall not include any amounts payable in respect of any related Companion Loan.

 

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

 

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

 

Qualified Replacement Special Servicer”: A replacement special servicer that (i) satisfies all of the eligibility requirements applicable to the applicable Special Servicer

 

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contained in this Agreement, (ii) is not the Operating Advisor, the Asset Representations Reviewer or an Affiliate of the Operating Advisor or the Asset Representations Reviewer, (iii) is not obligated to pay the Operating Advisor (x) any fees or otherwise compensate the Operating Advisor in respect of its obligations under this Agreement, and (y) for the appointment of the successor special servicer or the recommendation by the Operating Advisor for the replacement special servicer to become a Special Servicer, (iv) is not entitled to receive any compensation from the Operating Advisor other than compensation that is not material and is unrelated to the Operating Advisor’s recommendation that such party be appointed as the replacement special servicer, (v) is not entitled to receive any fee from the Operating Advisor for its appointment as successor special servicer, in each case, unless such fee is expressly approved by 100% of the Certificateholders, (vi) currently has a special servicer rating of at least “CSS3” from Fitch, (vii) is currently acting as a special servicer in a CMBS transaction rated by Moody’s (as to which CMBS transaction there are outstanding CMBS rated by Moody’s), (viii) 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 rating downgrade or withdrawal) of securities in a transaction serviced by the applicable servicer prior to the time of determination and (ix) either (A) has a then-current ranking by Morningstar equal to or higher than “MOR CS3” as a special servicer or (B)(i) is acting as special servicer in a CMBS that was rated by an NRSRO within the twelve (12) month period prior to the date of determination and (ii) Morningstar has not qualified, downgraded or withdrawn the then-current rating or ratings of one or more classes of certificates citing servicing concerns with the special servicer as the sole or material factor in such rating action.

 

Qualified Substitute Mortgage Loan”: A substitute mortgage loan (other than with respect to the Whole Loans, for which no substitution will be permitted) replacing a removed Mortgage Loan that must, on the date of substitution: (i) have an outstanding principal balance, after application of all scheduled payments of principal and interest due during or prior to the month of substitution, whether or not received, not in excess of the Stated Principal Balance of the removed Mortgage Loan as of the Due Date in the calendar month during which the substitution occurs; (ii) have a 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 as and Grace Period no longer than that of the removed Mortgage Loan; (iv) accrue interest on the same basis as the removed Mortgage Loan (for example, on the basis of a 360-day year consisting of twelve 30-day months); (v) have a remaining term to stated maturity not greater than, and not more than five (5) years less than, the remaining term to stated maturity of the removed Mortgage Loan; (vi) have a then-current loan-to-value ratio equal to or less than the lesser of the loan-to-value ratio for the removed Mortgage Loan as of the Closing Date and 75%, in each case using the “value” for the Mortgaged Property as determined using an Appraisal; (vii) comply as of the date of substitution in all material respects with all of the representations and warranties set forth in the applicable Mortgage Loan Purchase Agreement; (viii) have an environmental report that indicates no material adverse environmental conditions with respect to the related Mortgaged Property and which will be delivered as a part of the related Mortgage File; (ix) have a then-current debt service coverage ratio at least equal to (A) with respect to any Mortgage Loan other than an NCB Co-op Mortgage Loan, the greater of the original debt service coverage ratio of the removed Mortgage Loan as of the Closing Date and 1.25x, or (B) in the case of an NCB

 

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Co-op Mortgage Loan, the original debt service coverage ratio of the removed Mortgage Loan as of the Closing Date; (x) constitute a “qualified replacement mortgage” within the meaning of Section 860G(a)(4) of the Code as evidenced by an Opinion of Counsel (provided at the applicable Mortgage Loan Seller’s expense); (xi) not have a maturity date or an amortization period that extends to a date that is after the date five (5) years prior to the Rated Final Distribution Date; (xii) have comparable prepayment restrictions to those of the removed Mortgage Loan; (xiii) not be substituted for a removed Mortgage Loan unless the Trustee and the Certificate Administrator have received Rating Agency Confirmation from each Rating Agency (the cost, if any, of obtaining such Rating Agency Confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have been approved, so long as a Control Termination Event has not occurred and is not continuing and the affected Mortgage Loan is not an Excluded Loan, by the Directing Certificateholder; (xv) prohibit defeasance within two (2) years of the Closing Date; (xvi) not be substituted for a removed Mortgage Loan if it would result in an Adverse REMIC Event other than the imposition of a tax on income expressly permitted or contemplated to be imposed by the terms of this Agreement, as determined by an Opinion of Counsel at the cost of the related Mortgage Loan Seller; (xvii) have an engineering report that indicates no material adverse property condition or deferred maintenance with respect to the related Mortgaged Property that will be delivered as a part of the related Servicing File; and (xviii) be current in the payment of all scheduled payments of principal and interest then due. In the event that more than one mortgage loan is substituted for a removed Mortgage Loan, then the amounts described in clause (i) shall be determined on the basis of aggregate Stated Principal Balances and each such proposed Qualified Substitute Mortgage Loan shall individually satisfy each of the requirements specified in clauses (ii) through (xviii); provided that the rates described in clause (ii) above and the remaining term to stated maturity referred to in clause (v) above shall be determined on a weighted average basis; provided, further, that no individual Mortgage Rate (net of the Servicing Fee Rate, the Certificate Administrator Fee Rate, the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC® Intellectual Property Royalty License Fee Rate) shall be lower than the highest fixed Pass-Through Rate (and not based on, or subject to a cap equal to, the Weighted Average Net Mortgage Rate) of any class of Principal Balance Certificates having a Certificate Balance then outstanding. When a Qualified Substitute Mortgage Loan is substituted for a removed Mortgage Loan, the applicable Mortgage Loan Seller shall certify that the Qualified Substitute Mortgage Loan meets all of the requirements of the above definition and shall send such certification to the Trustee, the Certificate Administrator and, prior to the occurrence of a Consultation Termination Event, the Directing Certificateholder.

 

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

 

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

 

Rated Final Distribution Date”: As to each Class of Certificates, the Distribution Date in November 2059.

 

Rating Agency”: Each of Morningstar, Fitch and Moody’s or their successors in interest. If no such rating agency nor any successor thereof remains in existence, “Rating Agency” shall be deemed to refer to such nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be

 

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given to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer, and specific ratings of Morningstar, Fitch and Moody’s herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

Rating Agency Confirmation”: With respect to any matter, confirmation in writing (which may be in electronic form) by each applicable Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then-current rating assigned to any Class of Certificates (if then rated by the Rating Agency); provided that a written waiver or other acknowledgment from the Rating Agency indicating its decision not to review the matter for which the Rating Agency Confirmation is sought shall be deemed to satisfy the requirement for the Rating Agency Confirmation from each Rating Agency with respect to such matter.

 

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

 

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

 

Realized Loss”: As defined in Section 4.04(a).

 

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

 

Registered Certificates”: The Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class A-S, Class B, Class C, Class X-A and Class X-B Certificates.

 

Regular Certificates”: Any of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class A-S, Class B, Class C, Class D, Class E-1, Class E-2, Class E, Class F-1, Class F-2, Class F, Class EF, Class G-1, Class G-2, Class G, Class EFG, Class H-1, Class H-2, Class H, Class X-A, Class X-B and Class X-D Certificates.

 

Regulation AB”: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.

 

Regulation AB Companion Loan Securitization”: As defined in Section 11.15(a).

 

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

 

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Regulation D”: Regulation D under the Act.

 

Regulation S”: Regulation S under the Act.

 

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

 

Reimbursement Rate”: The rate per annum applicable to the accrual of interest on Servicing Advances in accordance with Section 3.03(d) and P&I Advances in accordance with Section 4.03(d)), which rate per annum shall equal the Prime Rate.

 

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

 

Related Certificates or Trust Component   Related Lower-Tier Regular Interest
Class A-1 Certificates   Class LA1 Uncertificated Interest
Class A-2 Certificates   Class LA2 Uncertificated Interest
Class A-3 Certificates   Class LA3 Uncertificated Interest
Class A-4 Certificates   Class LA4 Uncertificated Interest
Class A-SB Certificates   Class LASB Uncertificated Interest
Class A-S Certificates   Class LAS Uncertificated Interest
Class B Certificates   Class LB Uncertificated Interest
Class C Certificates   Class LC Uncertificated Interest
Class E-1 Trust Component   Class LE-1 Uncertificated Interest
Class E-2 Trust Component   Class LE-2 Uncertificated Interest
Class F-1 Trust Component   Class LF-1 Uncertificated Interest
Class F-2 Trust Component   Class LF-2 Uncertificated Interest
Class G-1 Trust Component   Class LG-1 Uncertificated Interest
Class G-2 Trust Component   Class LG-2 Uncertificated Interest
Class H-1 Trust Component   Class LH-1 Uncertificated Interest
Class H-2 Trust Component   Class LH-2 Uncertificated Interest

 

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

 

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

 

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

 

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

 

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

 

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

 

REO Account”: A segregated custodial account or accounts created and maintained by (a) with respect to each of the Mortgage Loans other than the NCB Co-op Mortgage Loans, the General Special Servicer pursuant to Section 3.14(b) on behalf of the Trustee for the benefit of the Certificateholders and with respect to any Serviced Whole Loan, for the benefit of the related Serviced Companion Noteholder, which shall initially be entitled “C-III Asset Management LLC, as Special Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36, REO Account” and (b) with respect to the NCB Co-op Mortgage Loans, the NCB Special Servicer, pursuant to and for the benefit of the Persons specified in Section 3.14(b), which shall be titled “National Cooperative Bank, N.A., as Special Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36”. Any such account or accounts shall be an Eligible Account.

 

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

 

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

 

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

 

REO Loan”: Each of the Mortgage Loans (and, with respect to any Serviced Whole Loan, the related Companion Loan, as applicable), deemed for purposes hereof to be outstanding with respect to each REO Property. Each REO Loan shall be deemed to be outstanding for so long as the applicable portion of the related REO Property (or beneficial interest therein, in the case of a Non-Serviced Mortgage Loan) remains part of the Trust Fund and provides for Assumed Scheduled Payments on each Due Date therefor, and otherwise has the same terms and conditions as its predecessor Mortgage Loan or Companion Loan, if applicable, including, without limitation, with respect to the calculation of the Mortgage Rate in effect from time to time (such terms and conditions to be applied without regard to the default on

 

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such predecessor Mortgage Loan or Companion Loan, if applicable). Each REO Loan shall be deemed to have an initial outstanding principal balance and Stated Principal Balance equal to the outstanding principal balance and Stated Principal Balance, respectively, of its predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition. All amounts due and owing in respect of the predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition, including, without limitation, accrued and unpaid interest, shall continue to be due and owing in respect of an REO Loan. All amounts payable or reimbursable to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator or the Trustee, as applicable, in respect of the predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition, including, without limitation, any unpaid Special Servicing Fees and Servicing Fees, additional trust fund expenses and any unreimbursed Advances, together with any interest accrued and payable to the applicable Master Servicer or the Trustee, as applicable, in respect of such Advances in accordance with Section 3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator or the Trustee, as applicable, in respect of an REO Loan. In addition, Unliquidated Advances and Nonrecoverable Advances with respect to such REO Loan, in each case, that were paid from collections on the related Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of “Principal Distribution Amount” shall be deemed outstanding until recovered. Notwithstanding anything to the contrary, with respect to each Serviced Whole Loan, no amounts relating to the related REO Property or REO Loan allocable to the related Serviced Pari Passu Companion Loan, as applicable, will be available for amounts due to the Certificateholders or to reimburse the Trust, other than in the limited circumstances related to Servicing Advances, indemnification payments, Special Servicing Fees and other reimbursable expenses related to such Serviced Whole Loan incurred with respect to such Serviced Whole Loan, in accordance with Section 3.05(a), or with respect to an AB Subordinate Companion Loan, as set forth in the related Intercreditor Agreement.

 

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

 

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

 

Reportable Event”: As defined in Section 11.07.

 

Reporting Requirements”: As defined in Section 11.12.

 

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

 

Repurchase Request”: A Certificateholder Repurchase Request or a PSA Party Repurchase Request.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Responsible Officer”: When used with respect to (i) the Trustee, any officer of the Corporate Trust Office of the Trustee with direct responsibility for the administration of this Agreement and, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject and (ii) the Certificate Administrator, any officer assigned to the Corporate Trust Services group with direct responsibility for the administration of this Agreement and, with respect to a particular matter, any other officer to whom a particular matter is referred by the Certificate Administrator because of such officer’s knowledge of and familiarity with the particular subject.

 

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

 

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

 

Retained Fee Rate”: A rate equal to (A) 0.01000% with respect to each NCB Mortgage Loan, and (B) 0.00250% per annum with respect to each Mortgage Loan (other than each NCB Mortgage Loan).

 

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

 

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

 

Rule 144A”: Rule 144A under the Act.

 

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

 

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

 

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

 

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

 

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

 

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) due in respect of such Mortgage Loans during or, if and to the extent not previously received or advanced pursuant to Section 4.03 in respect of a preceding Distribution Date (and not previously distributed to Certificateholders), prior to, the related Collection Period, and all Assumed Scheduled Payments with respect to the Mortgage Loans for the related Collection Period, in each case to the extent either (i) paid by the Mortgagor as of the Determination Date (or, 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 applicable

 

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Master Servicer as of the Business Day preceding the related P&I Advance Date) or (ii) advanced by the applicable Master Servicer or the Trustee, as applicable, pursuant to Section 4.03 in respect of such Distribution Date, and (b) all Balloon Payments with respect to the Mortgage Loans to the extent received on or prior to the related Determination Date (or, 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 applicable Master Servicer as of the Business Day preceding the related P&I Advance Date), and to the extent not included in clause (a) above.

 

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

 

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

 

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

 

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

 

Serviced AB Mortgage Loan”: For the avoidance of doubt, there are no Serviced AB Mortgage Loans related to the Trust.

 

Serviced AB Whole Loan”: For the avoidance of doubt, there are no Serviced AB Whole Loans related to the Trust.

 

Serviced Companion Loan”: Each of (a) the Plaza America I & II Pari Passu Companion Loan, (b) the Conrad Indianapolis Pari Passu Companion Loan, (c) the Gurnee Mills Pari Passu Companion Loans (prior to the related Servicing Shift Securitization Date), (d) the 101 Hudson Street Pari Passu Companion Loans (prior to the related Servicing Shift Securitization Date) and (e) any AB Subordinate Companion Loan related to a Serviced AB Whole Loan, as applicable.

 

Serviced Companion Loan Securities”: For so long as the related Mortgage Loan or any successor REO Loan is in the Trust Fund, any class of securities backed, wholly or partially, by any Serviced Companion Loan.

 

Serviced Companion Noteholder”: Each of the holders of (a) the Plaza America I & II Pari Passu Companion Loan, (b) the Conrad Indianapolis Pari Passu Companion Loan, (c) the Gurnee Mills Pari Passu Companion Loans (prior to the related Servicing Shift Securitization Date), (d) the 101 Hudson Street Pari Passu Companion Loans (prior to the related Servicing Shift Securitization Date) and (e) any AB Subordinate Companion Loan related to a Serviced AB Whole Loan, as applicable.

 

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Serviced Companion Noteholder Register”: The register maintained by the Companion Paying Agent pursuant to Section 3.28.

 

Serviced Mortgage Loan”: Each of (a) the Plaza America I & II Mortgage Loan, (b) the Conrad Indianapolis Mortgage Loan, (c) the Gurnee Mills Mortgage Loan (prior to the related Servicing Shift Securitization Date), (d) the 101 Hudson Street Mortgage Loan (prior to the related Servicing Shift Securitization Date) and (e) any AB Mortgage Loan related to a Serviced AB Whole Loan, as applicable.

 

Serviced Pari Passu Companion Loan”: Each of (a) the Plaza America I & II Pari Passu Companion Loan, (b) the Conrad Indianapolis Pari Passu Companion Loan, (c) the Gurnee Mills Pari Passu Companion Loans (prior to the related Servicing Shift Securitization Date) and (d) the 101 Hudson Street Pari Passu Companion Loans (prior to the related Servicing Shift Securitization Date).

 

Serviced Pari Passu Companion Loan Holder”: Any holder of record of any Serviced Pari Passu Companion Loan.

 

Serviced Pari Passu Companion Loan Securities”: For so long as the related Mortgage Loan or any successor REO Loan is in the Trust Fund, any class of securities issued by another securitization and backed by a Serviced Pari Passu Companion Loan.

 

Serviced Pari Passu Mortgage Loan”: Each of (a) the Plaza America I & II Mortgage Loan, (b) the Conrad Indianapolis Mortgage Loan, (c) the Gurnee Mills Mortgage Loan (prior to the related Servicing Shift Securitization Date) and (d) the 101 Hudson Street Mortgage Loan (prior to the related Servicing Shift Securitization Date).

 

Serviced Pari Passu Whole Loan”: Each of (a) the Plaza America I & II Whole Loan, (b) the Conrad Indianapolis Whole Loan, (c) the Gurnee Mills Whole Loan (prior to the related Servicing Shift Securitization Date) and (d) the 101 Hudson Street Whole Loan (prior to the related Servicing Shift Securitization Date).

 

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

 

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

 

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

 

Serviced Whole Loan”: Each of (a) the Plaza America I & II Whole Loan, (b) the Conrad Indianapolis Whole Loan, (c) the Gurnee Mills Whole Loan (prior to the related Servicing Shift Securitization Date) and (d) the 101 Hudson Street Whole Loan (prior to the related Servicing Shift Securitization Date).

 

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

 

Serviced Whole Loan Remittance Date”: With respect to any Serviced Companion Loan: (i) the date specified as the applicable remittance date (or equivalent concept) in the related Intercreditor Agreement or (ii) if no such applicable remittance date (or equivalent concept) is so specified in the related Intercreditor Agreement, then the earlier of (A) one (1) Business Day after the Determination Date or (B) the fifteenth (15th) day of each calendar month (or, if the fifteenth (15th) calendar day of that month is not a Business Day, then the Business Day immediately succeeding such fifteenth (15th) calendar day); provided, however, that such Serviced Whole Loan Remittance Date shall not be earlier than two (2) Business Days following the date the applicable Master Servicer receives the related Periodic Payment with respect to such Serviced Whole Loan.

 

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

 

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

 

Servicing Advances”: All customary, reasonable and necessary “out of pocket” costs and expenses (including attorneys’ fees and expenses and fees of real estate brokers) incurred by the applicable Master Servicer, the applicable Special Servicer, Certificate Administrator, or the Trustee, as applicable, in connection with the servicing and administering of (a) a Mortgage Loan (and in the case of a Serviced Mortgage Loan, the related Serviced Companion Loan, as applicable), other than a Non-Serviced Mortgage Loan, in respect of which a default, delinquency or other unanticipated event has occurred or as to which a default is reasonably foreseeable or (b) a Mortgaged Property securing a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or an REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), including, in the case of each of such clause (a) and clause (b), but not limited to, (x) the cost of (i) compliance with the applicable Master Servicer’s obligations set forth in Section 3.03(c), (ii) the preservation, restoration and protection of a Mortgaged Property and the priority of a Mortgage, (iii) obtaining any Insurance and Condemnation Proceeds or any Liquidation Proceeds of the nature described in clauses (i)(vi) of the definition of “Liquidation Proceeds,” (iv) any enforcement or judicial proceedings with respect to a Mortgaged Property, including foreclosures and (v) the operation, leasing, management, maintenance and liquidation of any REO Property and (y) any amount specifically designated herein to be paid as a “Servicing Advance”. Notwithstanding anything to the contrary, “Servicing Advances” shall not include allocable overhead of the applicable Master Servicer or the applicable 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 Servicers, the Special Servicers 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.

 

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

 

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

 

Servicing Fee Rate”: With respect to (i) each Mortgage Loan (including any Non-Serviced Mortgage Loan) and REO Loan, a per annum rate equal to the rate set forth on the Mortgage Loan Schedule under the heading “Servicing Fee”, which rate includes, in each such case, the rate at which applicable master, primary (other than any Non-Serviced Primary Servicing Fee Rate, which is not included under such heading) and sub-servicing fees accrue, in each case computed on the basis of the Stated Principal Balance of the related Mortgage Loan or REO Loan in the same manner in which interest is calculated in respect of such loans, and (ii) each Serviced Pari Passu Companion Loan, 0.00250% per annum, in each case computed on the basis of the Stated Principal Balance of the related Serviced Pari Passu Companion Loan in the same manner in which interest is calculated in respect of such loan. With respect to the Gurnee Mills Mortgage Loan, (a) prior to the related Servicing Shift Securitization Date, a per annum rate equal to 0.00500% and (b) following the related Servicing Shift Securitization Date, a per annum rate equal to 0.00250%. With respect to the 101 Hudson Street Mortgage Loan, (a) prior to the related Servicing Shift Securitization Date, a per annum rate equal to 0.00500% and (b) following the related Servicing Shift Securitization Date, a per annum rate equal to 0.00250%.

 

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

 

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

 

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

 

Servicing Shift Lead Note”: With respect to any Servicing Shift Whole Loan, as of any date of determination, the note or other evidence of indebtedness and/or agreements evidencing the indebtedness of a Mortgagor under such Servicing Shift Whole Loan including any amendments or modifications, or any renewal or substitution notes, as of such date, the sale of which to the related Non-Serviced Trust will cause servicing to shift from this Agreement to the related Non-Serviced PSA pursuant to the terms of the related Intercreditor Agreement for such Servicing Shift Whole Loan. As of the Closing Date, the Gurnee Mills Pari Passu Note A-1A and the 101 Hudson Street Pari Passu Note A-1 will be a Servicing Shift Lead Note related to the Trust.

 

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 related Non-Serviced PSA entered into in connection with the securitization, if any, of the related Servicing Shift Lead Note on the related Servicing Shift Securitization Date. As of the Closing Date, each of the Gurnee Mills Mortgage Loan and the 101 Hudson Street Mortgage Loan will be a Servicing Shift Mortgage Loan related to the Trust. After the last such Servicing Shift Securitization Date, there will be no Servicing Shift Mortgage Loan related to the Trust.

 

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

 

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Trustee. Each of the respective dates on which the Gurnee Mills Pari Passu Note A-1A and the 101 Hudson Street Pari Passu Note A-1 is included in a securitization trust is a Servicing Shift Securitization Date related to the Trust (subject to the proviso in the immediately preceding sentence).
 

Servicing Shift Whole Loan”: Any Whole Loan serviced under this Agreement as of the Closing Date, which includes a Servicing Shift Mortgage Loan included in the Trust Fund and one or more Companion Loans not included in the Trust Fund, but the servicing of which is expected to shift to the related Non-Serviced PSA entered into in connection with the securitization, if any, of the related Servicing Shift Lead Note on the related Servicing Shift Securitization Date. As of the Closing Date, each of the Gurnee Mills Whole Loan and the 101 Hudson Street will be a Servicing Shift Whole Loan related to the Trust. After the last such Servicing Shift Securitization Date, there will be no Servicing Shift Whole Loan related to the Trust.

 

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

 

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

 

(i)         the related Mortgagor has failed to make when due any Balloon Payment, and the Mortgagor has not delivered to the applicable Master Servicer, on or before the due date of such Balloon Payment, documentation reasonably satisfactory in form and substance to the applicable Master Servicer which provides that a refinancing of such Mortgage Loan or sale of the related Mortgaged Property will occur within 120 days after the date on which such Balloon Payment will become due (provided that if either (x) such refinancing or sale does not occur before the expiration of the time period for refinancing or sale specified in such documentation or (y) the applicable Master Servicer is required to make a P&I Advance in respect of such Mortgage Loan (or, in the case of any Serviced Whole Loan, in respect of the Mortgage Loan included in the same Serviced Whole Loan) at any time prior to such a refinancing or sale, a Servicing Transfer Event will occur immediately); or

 

(ii)        the related Mortgagor has failed to make when due any Periodic Payment (other than a Balloon Payment) or any other payment (other than a Balloon Payment) required under the related Mortgage Note or the related Mortgage, which failure has continued unremedied for sixty (60) days; or

 

(iii)       the applicable Master Servicer determines (in accordance with the Servicing Standard) or receives from the applicable Special Servicer a written determination of such Special Servicer (which determination the applicable Special Servicer shall make in accordance with the Servicing Standard and (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan), unless a Control Termination Event has occurred and is continuing or (B) if a Control Termination Event has occurred and is continuing,

 

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following consultation with the Directing Certificateholder (other than with respect to an Excluded Loan), unless a Consultation Termination Event has occurred and is continuing), that a default in making any Periodic Payment (other than a Balloon Payment) or any other material payment (other than a Balloon Payment) required under the related Mortgage Note or the related Mortgage is likely to occur in the foreseeable future, and such default is likely to remain unremedied for at least sixty (60) days beyond the date on which the subject payment will become due; or the applicable Master Servicer determines (in accordance with the Servicing Standard) or receives from the applicable Special Servicer a written determination of such Special Servicer (which determination the applicable Special Servicer shall make in accordance with the Servicing Standard and (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan), unless a Control Termination Event has occurred and is continuing or (B) if a Control Termination Event has occurred and is continuing, following consultation with the Directing Certificateholder (other than with respect to an Excluded Loan), unless a Consultation Termination Event has occurred and is continuing), that a default in making a Balloon Payment is likely to occur in the foreseeable future, and such default is likely to remain unremedied for at least sixty (60) days beyond the date on which such Balloon Payment will become due (or, if the Mortgagor has delivered, on or prior to the Balloon Payment Date, documentation reasonably satisfactory in form and substance to the applicable Master Servicer or the applicable Special Servicer (and such Master Servicer or such Special Servicer, as applicable, shall promptly forward such documentation to the applicable Special Servicer or applicable Master Servicer, as applicable) which provides that a refinancing of such Mortgage Loan or sale of the related Mortgaged Property will occur within 120 days following the date on which such Balloon Payment will become due, the applicable Master Servicer determines (in accordance with the Servicing Standard) or receives from the applicable Special Servicer a written determination of such Special Servicer (which determination the applicable Special Servicer shall make in accordance with the Servicing Standard and (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan), unless a Control Termination Event has occurred and is continuing or (B) if a Control Termination Event has occurred and is continuing, following consultation with the Directing Certificateholder (other than with respect to an Excluded Loan), unless a Consultation Termination Event has occurred and is continuing), that (A) the Mortgagor is likely not to make one or more Assumed Scheduled Payments prior to such a refinancing or sale or (B) such refinancing or sale is not likely to occur within 120 days following the date on which such Balloon Payment will become due); or

 

(iv)       there shall have occurred a default (including, in the applicable Master Servicer’s or the applicable Special Servicer’s judgment, the failure of the related Mortgagor to maintain any insurance required to be maintained pursuant to the related Mortgage Loan documents, unless such default has been waived in accordance with Section 3.07 or 3.18 hereof) under the related Mortgage Loan documents, other than as described in clause (i) or (ii) above, that may, in the

 

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good faith and reasonable judgment of the applicable Master Servicer or the applicable Special Servicer (and, in the case of the applicable Special Servicer (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan), unless a Control Termination Event has occurred and is continuing or (B) if a Control Termination Event has occurred and is continuing, following consultation with the Directing Certificateholder (other than with respect to an Excluded Loan), unless a Consultation Termination Event has occurred and is continuing), materially impair the value of the related Mortgaged Property as security for such Mortgage Loan or Serviced Whole Loan or otherwise materially and adversely affect the interests of Certificateholders (or, in the case of any Serviced Whole Loan, the interests of the related Serviced Pari Passu Companion Loan Holder(s)), which default has continued unremedied for the applicable cure period under the terms of such Mortgage Loan or Serviced Whole Loan (or, if no cure period is specified, sixty (60) days); or

 

(v)       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, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the related Mortgagor and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or

 

(vi)      the related Mortgagor shall have consented to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to such Mortgagor or of or relating to all or substantially all of its property; or

 

(vii)     the related Mortgagor shall have admitted in writing its inability to pay its debts generally as they become due, filed a petition to take advantage of any applicable insolvency or reorganization statute, made an assignment for the benefit of its creditors, or voluntarily suspended payment of its obligations; or

 

(viii)    the applicable Master Servicer shall have received notice of the commencement of foreclosure or similar proceedings with respect to the corresponding Mortgaged Property; or

 

(ix)      the applicable Master Servicer or the applicable Special Servicer (and in the case of the applicable Special Servicer, with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan), unless a Control Termination Event has occurred and is continuing) determines that (i) a default (including, in the applicable Master Servicer’s or the applicable Special Servicer’s judgment, the failure of the related Mortgagor to maintain any insurance required to be maintained pursuant to the related Mortgage Loan documents, unless such default has been waived in accordance with Section 3.07 or Section 3.18 hereof) under the Mortgage Loan documents (other than as

 

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described in clause (iii) above) is imminent or reasonably foreseeable, (ii) such default will materially impair the value of the corresponding Mortgaged Property as security for the Mortgage Loan or Serviced Pari Passu Companion Loan (if any) or otherwise materially and adversely affect the interests of Certificateholders (or the related Serviced Pari Passu Companion Loan Holder) and (iii) the default is likely to continue unremedied for the applicable cure period under the terms of the Mortgage Loan documents, or, if no cure period is specified and the default is capable of being cured, for sixty (60) days;

 

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

 

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 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 Mortgage Loan documents.

 

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 5.03(m).

 

Sole Certificateholder”: Any Certificate Owner, or Certificate Owners acting in unanimity, of a Book-Entry Certificate or a Holder of a Definitive Certificate holding 100% of the then-outstanding Class F-1, Class F-2, Class F, Class EF, Class G-1, Class G-2, Class G, Class EFG, Class H-1, Class H-2 and Class H Certificates; provided, however, that the Certificate Balances of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class A-S, Class B, Class C , Class D, Class E-1 and Class E-2 Certificates have been retired.

 

Special Notice”: As defined in Section 5.06.

 

Special Servicer”: With respect to (i) each of the Mortgage Loans (other than any NCB Co-op Mortgage Loan, any Non-Serviced Mortgage Loan and any Excluded Special Servicer Loan) and the Serviced Companion Loans, the General Special Servicer, and its successors in interest and assigns, or any successor special servicer appointed as herein provided, (ii) any NCB Co-op Mortgage Loan, any REO Property acquired by the Trust with respect to an NCB Co-op Mortgage Loan and any matters relating to the foregoing, the NCB Special Servicer and (iii) any Excluded Special Servicer Loan, if any, the related Excluded Special Servicer appointed pursuant to Section 7.01(g) of this Agreement, as applicable and as the context may require.

 

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Special Servicing Fee”: With respect to each Specially Serviced Loan and REO Loan (other than a Non-Serviced Mortgage Loan), the fee payable to the Special Servicer pursuant to Section 3.11(b).

 

Special Servicing Fee Rate”: With respect to each Specially Serviced Loan and each REO Loan (other than a Non-Serviced Mortgage Loan) on a loan by loan basis, (a) 0.25000% per annum computed on the basis of the Stated Principal Balance of the related Mortgage Loan (including any REO Loan) and Companion Loan, as applicable, in the same manner as interest is calculated on such Specially Serviced Loan; and (b) if the rate in clause (a) would result in a Special Servicing Fee that would be less than (i) $3,500 with respect to any Mortgage Loan other than an NCB Co-op Mortgage Loan or (ii) $1,000 with respect to any NCB Co-op Mortgage Loan, in each case, in any given month, then the Special Servicing Fee Rate for such month for such Specially Serviced Loan or REO Loan shall be a rate equal to such higher rate as would result in a Special Servicing Fee equal to $3,500 (in the case of any such Mortgage Loan other than an NCB Co-op Mortgage Loan) or $1,000 (in the case of any such NCB Co-op Mortgage Loan), as applicable, for such month with respect to such Specially Serviced Loan or REO Loan.

 

Specially Serviced Loan”: As defined in Section 3.01(a).

 

Sponsors”: The Mortgage Loan Sellers.

 

Startup Day”: The day designated as such in Section 10.01(b).

 

Stated Principal Balance”: With respect to any Mortgage Loan, as of any date of determination, an amount equal to (x) the Cut-off Date Balance of such Mortgage Loan (or in the case of a Qualified Substitute Mortgage Loan, the unpaid principal balance of such Mortgage Loan after application of all scheduled payments of principal and interest due during or prior to the month of substitution, whether or not received) minus (y) the sum of:

 

(i)         the principal portion of each Periodic Payment due on such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, due after the Due Date in the related month of substitution), to the extent received from the Mortgagor or advanced by the applicable Master Servicer;

 

(ii)        all Principal Prepayments received with respect to such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, after the Due Date in the related month of substitution);

 

(iii)       the principal portion of all Insurance and Condemnation Proceeds (to the extent allocable to principal on such Mortgage Loan) and Liquidation Proceeds received with respect to such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, after the Due Date in the related month of substitution); and

 

(iv)       any reduction in the outstanding principal balance of such Mortgage Loan resulting from a Deficient Valuation or a modification of such

 

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Mortgage Loan pursuant to the terms and provisions of this Agreement that occurred prior to the end of the Collection Period for the most recent Distribution Date.

 

With respect to any REO Loan that is a successor to a Mortgage Loan, as of any date of determination, an amount equal to (x) the Stated Principal Balance of the predecessor Mortgage Loan as of the date of the related REO Acquisition, minus (y) the sum of:

 

(i)         the principal portion of any P&I Advance made with respect to such REO Loan; and

 

(ii)        the principal portion of all Insurance and Condemnation Proceeds (to the extent allocable to principal on the related Mortgage Loan), Liquidation Proceeds and REO Revenues received with respect to such REO Loan.

 

A Mortgage Loan or an REO Loan that is a successor to a Mortgage Loan shall be deemed to be part of the Trust Fund and to have an outstanding Stated Principal Balance until the Distribution Date on which the payments or other proceeds, if any, received in connection with a Liquidation Event in respect thereof are to be (or, if no such payments or other proceeds are received in connection with such Liquidation Event, would have been) distributed to Certificateholders.

 

With respect to each Companion Loan on any date of determination, the Stated Principal Balance shall equal the unpaid principal balance of such Companion Loan as of such date. On any date of determination, the Stated Principal Balance of each Whole Loan shall equal the sum of the Stated Principal Balances of the related Mortgage Loan and the related Companion Loan(s), as applicable, on such date.

 

With respect to any REO Loan that is a successor to a Companion Loan as of any date of determination, the Stated Principal Balance shall equal (x) the Stated Principal Balance of the predecessor Companion Loan as of the date of the related REO Acquisition, minus (y) the principal portion of any amounts allocable to the related Companion Loan in accordance with the related Intercreditor Agreement.

 

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

 

Subject Loans”: As defined in Section 12.02(b).

 

Subordinate Certificate”: Any Class A-S, Class B, Class C, Class D, Class E-1, Class E-2, Class E, Class F-1, Class F-2, Class F, Class EF, Class G-1, Class G-2, Class G, Class EFG, Class H-1, Class H-2 or Class H Certificate.

 

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Subordinate Companion Holder”: The holder of any AB Subordinate Companion Loan.

 

Sub-Servicer”: Any Person that services Mortgage Loans on behalf of a Master Servicer, a Special Servicer or an Additional Servicer and is responsible for the performance (whether directly or through Sub-Servicers or Subcontractors) of a substantial portion of the material servicing functions required to be performed by such Master Servicer, such Special Servicer or an Additional Servicer under this Agreement, with respect to some or all of the Mortgage Loans that are identified in Item 1122(d) of Regulation AB.

 

Sub-Servicing Agreement”: The written contract between a Master Servicer or a Special Servicer, as the case may be, and any Sub-Servicer relating to servicing and administration of Mortgage Loans as provided in Section 3.20.

 

Substitution Shortfall Amount”: With respect to a substitution pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of the Purchase Price of the Mortgage Loan being replaced calculated as of the date of substitution over the Stated Principal Balance of the related Qualified Substitute Mortgage Loan after application of all scheduled payments of principal and interest due during or prior to the month of substitution. In the event that one or more Qualified Substitute Mortgage Loans are substituted (at the same time by the same Mortgage Loan Seller) for one or more removed Mortgage Loans, the Substitution Shortfall Amount shall be determined as provided in the preceding sentence on the basis of the aggregate Purchase Prices of the Mortgage Loan(s) being replaced and the aggregate Stated Principal Balances of the related Qualified Substitute Mortgage Loan(s).

 

Surviving Entity”: As defined in Section 6.03(b).

 

Tax Returns”: The federal income tax returns on (i) Internal Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed on behalf of each Trust REMIC due to its respective classification as a REMIC under the REMIC Provisions and (ii) Internal Revenue Service Form 1041 or Internal Revenue Service Form 1099, as applicable, or any successor forms to be filed on behalf of the Grantor Trust, together with any and all other information, reports or returns that may be required to be furnished to the Certificateholders or filed with the Internal Revenue Service or any other governmental taxing authority under any applicable provisions of federal tax law or Applicable State and Local Tax Law.

 

Temporary Regulation S Book-Entry Certificate”: As defined in Section 5.02(a).

 

Test”: As defined in Section 12.01(b)(iv).

 

Transfer”: Any direct or indirect transfer, sale, pledge, hypothecation, or other form of assignment of any Ownership Interest in a Certificate.

 

Transferable Servicing Interest”: With respect to each Mortgage Loan or Serviced Pari Passu Companion Loan (and any successor REO Loan with respect thereto), the amount by which the related Servicing Fee otherwise payable to the applicable Master Servicer

 

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hereunder exceeds the sum of (i) the fee payable to the applicable Master Servicer as the portion of the Servicing Fee attributable to primary servicing and (ii) the amount of the Servicing Fee calculated using the Retained Fee Rate, which Transferable Servicing Interest is subject to reduction by the Trustee pursuant to Section 3.11(a) of this Agreement. For the avoidance of doubt, the Transferable Servicing Interest (A) with respect to each NCB Mortgage Loan is six (6) basis points, and (B) with respect to each Mortgage Loan (other than the NCB Mortgage Loans) is zero.

 

Transferee”: Any Person who is acquiring by Transfer any Ownership Interest in a Certificate.

 

Transferee Affidavit”: As defined in Section 5.03(n)(ii).

 

Transferor”: Any Person who is disposing by Transfer any Ownership Interest in a Certificate.

 

Transferor Letter”: As defined in Section 5.03(n)(ii).

 

Trust”: The trust created hereby and to be administered hereunder. The Trust shall be named: “Wells Fargo Commercial Mortgage Trust 2016-C36”.

 

Trust Component”: As defined in Section 5.09(a).

 

Trust Fund”: The corpus of the Trust created hereby and to be administered hereunder, consisting of: (i) such Mortgage Loans as from time to time are subject to this Agreement (including any Qualified Substitute Mortgage Loan replacing a removed Mortgage Loan), together with the Mortgage Files relating thereto (subject to, in the case of a Serviced Whole Loan, the interests of the related Serviced Companion Noteholder in the related Mortgage File); (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut-off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (to the extent of the Trust’s interest therein) or the Trust’s beneficial interest in the Mortgaged Property securing a Non-Serviced Whole Loan acquired under the related Non-Serviced PSA; (iv) all revenues received in respect of any REO Property (to the extent of the Trust’s interest therein); (v) the applicable Master Servicer’s, the applicable Special Servicer’s, the Certificate Administrator’s and the Trustee’s rights under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to this Agreement and any proceeds thereof (to the extent of the Trust’s interest therein); (vi) any Assignment of Leases and any security agreements (to the extent of the Trust’s interest therein); (vii) any letters of credit, indemnities, guaranties or lease enhancement policies given as additional security for any related Mortgage Loans (to the extent of the Trust’s interest therein); (viii) all assets deposited in the Loss of Value Reserve Fund and the Servicing Accounts (to the extent of the Trust’s interest therein), amounts on deposit in the Collection Accounts (to the extent of the Trust’s interest therein), the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Class E Distribution Account, the Class F Distribution Account, the Class G Distribution Account, the Class H Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account (to the extent of the Trust’s interest in such Gain-on-Sale Reserve Account) and any REO Account (to the extent of

 

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the Trust’s interest in such REO Account), including any reinvestment income, as applicable; (ix) any Environmental Indemnity Agreements (to the extent of the Trust’s interest therein); (x) the rights and remedies of the Depositor under each Mortgage Loan Purchase Agreement (to the extent transferred to the Trustee); (xi) the Lower-Tier Regular Interests and the Trust Components; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the lock-box accounts, cash collateral accounts, escrow accounts and any reserve accounts, to the extent such interest belongs to the related Mortgagor).

 

Trust-Related Litigation”: As defined in Section 3.32.

 

Trust REMIC”: As defined in the Preliminary Statement.

 

Trustee”: Wilmington Trust, National Association, or its successor in interest, in its capacity as trustee and its successors in interest, or any successor trustee appointed as herein provided.

 

Trustee Fee”: The fee to be paid to the Trustee as compensation for the Trustee’s activities under this Agreement, which fee is included as part of the Certificate Administrator Fee. No portion of the Trustee Fee shall be calculated by reference to any Companion Loan or the Stated Principal Balance of any Companion Loan. The Trustee Fee shall be equal to $290 per month and shall be paid as a portion of the Certificate Administrator Fee.

 

UCC”: The Uniform Commercial Code, as enacted in each applicable state.

 

UCC Financing Statement”: A financing statement prepared and filed pursuant to the UCC, as in effect in the relevant jurisdiction.

 

Uncovered Amount”: With respect to any Master Servicer’s Collection Account, any additional trust fund expense, Nonrecoverable Advance or other item that would be payable or reimbursable out of general funds (as opposed to a specific source of funds) in such Collection Account pursuant to any of clauses (i)(xix) or clause (xxii) of Section 3.05(a), but which cannot be so paid or reimbursed because such general funds are insufficient to cover such payment or reimbursement; provided that any such additional trust fund expense, Nonrecoverable Advance or other item will be an Uncovered Amount only to the extent that such general funds are insufficient to cover the payment or reimbursement thereof.

 

Underwriters”: Wells Fargo Securities, LLC, Barclays Capital Inc., Academy Securities, Inc and Citigroup Global Markets Inc.

 

Uninsured Cause”: Any cause of damage to property subject to a Mortgage such that the complete restoration of such property is not fully reimbursable by the hazard insurance policies or flood insurance policies required to be maintained pursuant to Section 3.07.

 

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

 

Unliquidated Advance”: Any Advance previously made by a party hereto that has been previously reimbursed, as between the Person that made the Advance hereunder, on the

 

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one hand, and the Trust, on the other, as part of a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise from collections on or the proceeds of the related Mortgage Loan or REO Property in respect of which the Advance was made.

 

Unscheduled Principal Distribution Amount”: With respect to any Distribution Date 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 portions of all Liquidation Proceeds, Insurance and Condemnation Proceeds (net of Special Servicing Fees, Liquidation Fees, accrued interest on Advances and other additional expenses of the Trust incurred in connection with the related Mortgage Loan) and, if applicable, REO Revenues received with respect to such Mortgage Loan and any REO Loans on or prior to the related Determination Date, but in each case only to the extent that such principal portion represents a recovery of principal for which no advance was previously made pursuant to Section 4.03 in respect of a preceding Distribution Date.

 

Unsolicited Information”: As defined in Section 12.01(b)(iii).

 

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

 

Upper-Tier REMIC Distribution Account”: The segregated account or accounts (or a subaccount of the Distribution Account) created and maintained by the Certificate Administrator (on behalf of the Trustee) pursuant to Section 3.04(b) in trust for the Certificateholders, which shall initially be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36, Upper-Tier REMIC Distribution Account”. Any such account or accounts shall be an Eligible Account.

 

U.S. Dollars” or “$”: Lawful money of the United States of America.

 

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

 

Voting Rights”: The portion of the voting rights of all of the Certificates which is allocated to any Certificate. At all times during the term of this Agreement, the Voting Rights shall be allocated among the various Classes of Certificateholders as follows: (i) 2% in the case

 

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of the Class X Certificates (allocated pro rata, based upon their respective Notional Amounts as of the date of determination) and (ii) in the case of the Principal Balance Certificates, a percentage equal to the product of 98% and a fraction, the numerator of which is equal to the Certificate Balance (and solely in connection with any vote for purposes of determining whether to remove the applicable Special Servicer pursuant to Section 7.01(d) or the Operating Advisor pursuant to Section 3.26(j), taking into account any notional reduction in the Certificate Balance for Appraisal Reduction Amounts allocated to the Certificates pursuant to Section 4.05(a) hereof) of such Class, in each case, determined as of the Distribution Date immediately preceding such time, and the denominator of which is equal to the aggregate Certificate Balance (and solely in connection with any vote for purposes of determining whether to remove the Special Servicer pursuant to Section 7.01(d), the Operating Advisor pursuant to Section 3.26(k) or the Asset Representations Reviewer pursuant to Section 12.05, taking into account any notional reduction in the Certificate Balance for Appraisal Reduction Amounts allocated to the Certificates pursuant to Section 4.05(a) hereof) of the Principal Balance Certificates, determined as of the Distribution Date immediately preceding such time. For purposes of such allocations, (i) the Class E-1 Certificates, the Class E Component E-1, the Class EF Component E-1 and the Class EFG Component E-1 will be considered as if they together constituted a single “Class”; (ii) the Class E-2 Certificates, the Class E Component E-2, the Class EF Component E-2 and the Class EFG Component E-2 will be considered as if they together constituted a single “Class”; (iii) the Class F-1 Certificates, the Class F Component F-1, the Class EF Component F-1 and the Class EFG Component F-1 will be considered as if they together constituted a single “Class”; (ii) the Class F-2 Certificates, the Class F Component F-2, the Class EF Component F-2 and the Class EFG Component F-2 will be considered as if they together constituted a single “Class”; (v) the Class G-1 Certificates, the Class G Component G-1 and the Class EFG Component G-1 will be considered as if they together constituted a single “Class”; (vi) the Class G-2 Certificates, the Class G Component G-2 and the Class EFG Component G-2 will be considered as if they together constituted a single “Class”; (vii) the Class H-1 Certificates and the Class H Component H-1 will be considered as if they together constituted a single “Class”; and (viii) the Class H-2 Certificates and the Class H Component H-2 will be considered as if they together constituted a single “Class”. Voting Rights will be allocated to each of the Class E, Class F, Class G, Class H, Class EF and Class EFG Certificates only with respect to each Exchangeable Component that is part of such Class of Certificates, as described in the preceding sentence.

 

The Voting Rights of any Class of Certificates shall be allocated among Certificateholders of such Class in proportion to their respective Percentage Interests. The Class R Certificates will not be entitled to any Voting Rights.

 

Weighted Average Net Mortgage Rate”: With respect to any Distribution Date, the weighted average of the applicable Net Mortgage Rates of the Mortgage Loans (including any Non-Serviced Mortgage Loans) as of the first day of the related Collection Period, weighted

 

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on the basis of their respective Stated Principal Balances as of the first day of such Collection Period (after giving effect to any payments received during any applicable Grace Period).

 

WFB Mortgage Loans”: The Mortgage Loans sold to the Depositor by Wells Fargo Bank, National Association, pursuant to the related Mortgage Loan Purchase Agreement.

 

WFCM 2016-C35 Pooling and Servicing Agreement”: The pooling and servicing agreement, dated as of July 1, 2016, among, Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells Fargo Bank, National Association, as servicer, CWCapital Asset Management LLC, as special servicer, National Cooperative Bank, N.A., as NCB master servicer and NCB special servicer, Wilmington Trust, National Association, as trustee and Wells Fargo Bank, National Association, certificate administrator and custodian, as from time to time amended, supplemented or modified, relating to the issuance of the WFCM 2016-C35 Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2016-C35.

 

WFCM 2016-LC24 Pooling and Servicing Agreement”: The pooling and servicing agreement, dated as of September 1, 2016, among, Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer, Midland Loan Services, a division of PNC Bank, National Association, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and NCB special servicer, Wilmington Trust, National Association, as trustee and Wells Fargo Bank, National Association, certificate administrator and custodian, as from time to time amended, supplemented or modified, relating to the issuance of the WFCM 2016-LC24 Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2016-LC24.

 

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 or successor provisions.

 

Whole Loan”: Any of (i) the Easton Town Center Whole Loan, (ii) the Gas Company Tower & World Center Parking Garage Whole Loan, (iii) the Plaza America I & II Whole Loan, (iv) the Conrad Indianapolis Whole Loan, (v) the Mall at Turtle Creek Whole Loan, (vi) the One & Two Corporate Plaza Whole Loan, (vii) the Central Park Retail Whole Loan, (viii) the Gurnee Mills Whole Loan and (ix) the 101 Hudson Street Whole Loan.

 

Withheld Amounts”: As defined in Section 3.21(a).

 

Workout-Delayed Reimbursement Amounts”: With respect to any Mortgage Loan, the amount of any Advances made with respect to such Mortgage Loan on or before the date such Mortgage Loan becomes (or, but for the making of three Periodic Payments under its modified terms, would then constitute) a Corrected Loan, together with (to the extent accrued and unpaid) interest on such Advances, to the extent that (i) such Advance (and accrued and unpaid interest thereon) is not reimbursed to the Person who made such Advance on or before the date, if any, on which Mortgage Loan becomes a Corrected Loan and (ii) the amount of such Advance (and accrued and unpaid interest thereon) becomes an obligation of the related Mortgagor to pay such amount under the terms of the modified loan documents. That any

 

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amount constitutes all or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner limit the right of any Person hereunder to determine in the future that such amount instead constitutes a Nonrecoverable Advance.

 

Workout Fee”: The fee paid to the applicable Special Servicer with respect to each Corrected Loan in accordance with Section 3.11(c).

 

Workout Fee Rate”: With respect to each Corrected Loan and in accordance with Section 3.11(c), a fee of 1.00% of each collection (other than Penalty Charges) of interest and principal (other than any amount for which a Liquidation Fee would be paid), including (i) Periodic Payments, (ii) Balloon Payments, (iii) Principal Prepayments and (iv) payments (other than those included in clause (i) or (ii) of this definition) at maturity, received on each Corrected Loan for so long as it remains a Corrected Loan.

 

Yield Maintenance Charge”: With respect to any Mortgage Loan, any premium, fee or other additional amount paid or payable, as the context requires, by a borrower in connection with a principal prepayment on, or other early collection of principal of, a Mortgage Loan, calculated, in whole or in part, pursuant to a yield maintenance formula or otherwise pursuant to a formula that reflects the lost interest, including any specified amount or specified percentage of the amount prepaid which constitutes the minimum amount that such Yield Maintenance Charge may be.

 

Section 1.02     Certain Calculations. Unless otherwise specified herein, for purposes of determining amounts with respect to the Certificates and the rights and obligations of the parties hereto, the following provisions shall apply:

 

(i)         All calculations of interest (other than as provided in the related Mortgage Loan documents) provided for herein shall be made on the basis of a 360-day year consisting of twelve 30-day months.

 

(ii)        Any Mortgage Loan or Companion Loan payment is deemed to be received on the date such payment is actually received by the applicable Master Servicer or the applicable Special Servicer; provided, however, that for purposes of calculating distributions on the Certificates, Principal Prepayments with respect to any Mortgage Loan are deemed to be received on the date they are applied in accordance with the Servicing Standard consistent with the terms of the related Mortgage Note and Mortgage to reduce the outstanding principal balance of such Mortgage Loan, on which interest accrues.

 

(iii)       Any reference to the Certificate Balance of any Class of Principal Balance Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Principal Balance Certificates on such Distribution Date after giving effect to (a) any distributions made on such Distribution Date pursuant to Section 4.01(a), Section 4.01(b), and Section 4.01(c), (b) any Realized Losses allocated to such Class of Principal Balance Certificates on the immediately preceding Distribution Date pursuant to Section 4.04, and (c) any recoveries on the related Mortgage Loans of Nonrecoverable Advances (plus interest thereon) that were previously reimbursed from principal

 

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collections on the related Mortgage Loans, that resulted in a reduction of the Principal Distribution Amount, which recoveries are allocated to such Class of Principal Balance Certificates and added to the Certificate Balance pursuant to Section 4.04(a).

 

(iv)      Unless otherwise specifically provided for herein, all net present value calculations and determinations made with respect to a Mortgage Loan, Serviced Companion Loan, Mortgaged Property or REO Property (including for purposes of the definition of “Servicing Standard”) shall be made, in the event the Mortgage Loan documents are silent, using a discount rate (a) for principal and interest payments on a Mortgage Loan, Serviced Companion Loan, as applicable, or sale by the applicable Special Servicer of a Defaulted Loan, the highest of (x) the rate determined by the applicable Master Servicer or the applicable Special Servicer, as applicable, that approximates the market rate that would be obtainable by the related Mortgagor on similar non-defaulted debt of such Mortgagor as of such date of determination, (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Companion Loan based on its outstanding principal balance and (z) the yield on 10-year U.S. treasuries as of such date of determination, and (b) for all other cash flows, including property cash flow, the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property.

 

(v)       Any reference to “expense of the trust” or “additional trust fund expense” or words of similar import shall be construed to mean, for any Serviced Mortgage Loan, an expense that shall be applied in accordance with the related Intercreditor Agreement or, if no application is specified in the related Intercreditor Agreement, then, to the extent such Intercreditor Agreement refers to this Agreement for the application of trust fund expenses or such Intercreditor Agreement does not prohibit the following application of trust fund expenses (i) with respect to any Serviced Pari Passu Whole Loan, pro rata and pari passu, to the Trust and Serviced Pari Passu Companion Loan in accordance with the respective Stated Principal Balances of the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan or (ii) with respect to any AB Whole Loan, first, to the related AB Subordinate Companion Loan and then, to the Trust.

 

[End of Article I]

 

Article II

CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES

 

Section 2.01     Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby establish a trust, appoint the Trustee as trustee of the trust, assign, sell, transfer and convey to the Trustee, in trust, without recourse, for the benefit of the Certificateholders and the Trustee (as holder of the Lower-Tier Regular Interests) all the right, title and interest of the Depositor, whether now owned or existing or hereafter acquired or arising, including any security interest therein for the benefit of the Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections 2, 3, 4 (other than Section 4(c), (d), (e) and (g)) and 5 (other than Section 5(f), (g),

 

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(h) and (i)) and, to the extent related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18 of each of the Mortgage Loan Purchase Agreements and Section 19 of the Mortgage Loan Purchase Agreement among the Depositor, Basis Real Estate Capital II, LLC and Basis Investment Group LLC; (iii) the Intercreditor Agreements; and (iv) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut-off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (v) any REO Property (to the extent of the Depositor’s interest therein) or the Depositor’s beneficial interest in the Mortgaged Property securing a Non-Serviced Whole Loan acquired under the related Non-Serviced PSA; (vi) all revenues received in respect of any REO Property (to the extent of the Depositor’s interest therein); (vii) the applicable Master Servicer’s, the applicable Special Servicer’s, the Certificate Administrator’s and the Trustee’s rights under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to this Agreement and any proceeds thereof (to the extent of the Depositor’s interest therein); (viii) any Assignment of Leases and any security agreements (to the extent of the Depositor’s interest therein); (ix) any letters of credit, indemnities, guaranties or lease enhancement policies given as additional security for any related Mortgage Loans (to the extent of the Depositor’s interest therein); (x) all assets deposited in the Loss of Value Reserve Fund and the Servicing Accounts (to the extent of the Depositor’s interest therein), amounts on deposit in the Collection Accounts (to the extent of the Depositor’s interest therein), the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account (to the extent of the Depositor’s interest in such Gain-on-Sale Reserve Account) and any REO Account (to the extent of the Depositor’s interest in such REO Account), including any reinvestment income, as applicable; (xi) any Environmental Indemnity Agreements (to the extent of the Depositor’s interest therein); (xii) the rights and remedies of the Depositor under each Mortgage Loan Purchase Agreement (to the extent not covered by clause (ii) above); (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 Mortgagor) (collectively, the “Conveyed Property”). Such assignment includes all interest and principal received or receivable on or with respect to the Mortgage Loans (in each case, other than (i) payments of principal and interest due and payable on the Mortgage Loans on or before the Cut-off Date; (ii) prepayments of principal collected on or before the Cut-off Date; (iii) with respect to those Mortgage Loans that were closed in November 2016 but have their first Due Date in December 2016, any interest amounts relating to the period prior to the Cut-off Date; and (iv) any Retained Defeasance Rights and Obligations with respect to the Mortgage Loans for which Bancorp is the related Mortgage Loan Seller). The transfer of the Mortgage Loans and the related rights and property accomplished hereby is absolute and, notwithstanding Section 13.07, is intended by the parties to constitute a sale. In connection with the assignment to the Trustee of Sections 2, 3, 4 (other than Section 4(c), (d) and (f)) and 5 (other than Section 5(f), (g), (h) and (i)) and, to the extent related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18 of each of the Mortgage Loan Purchase Agreements and Section 19 of the Mortgage Loan Purchase Agreement among the Depositor, Basis Real Estate Capital II, LLC and Basis Investment Group LLC, it is intended that the Trustee get the benefit of Sections 10, 13 and 15 thereof in connection with any exercise of rights under the assigned Sections, and the Depositor shall use its best efforts to make available to the Trustee the benefits of Sections 10, 13 and 15 in connection therewith.

 

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(b)          In connection with the Depositor’s assignment pursuant to subsection (a) above, the Depositor shall direct, and hereby represents and warrants that it has directed, the Mortgage Loan Sellers pursuant to the applicable Mortgage Loan Purchase Agreement to deliver and deposit with, or cause to be delivered to and deposited with, the Custodian, (A) on or before the Closing Date, the Mortgage Note relating to each Mortgage Loan so assigned, endorsed to the Trustee or in blank as specified in clause (i) of the definition of “Mortgage File” (or, alternatively, if the original executed Mortgage Note has been lost, a lost note affidavit and indemnity with a copy of such Mortgage Note as specified in clause (i) of the definition of “Mortgage File”) and (B) on or before the date that is 45 days following the Closing Date, the remainder of the Mortgage File for each Mortgage Loan and, except in the case of a Mortgage Loan that is a Non-Serviced Whole Loan as of the Closing Date, any other items required to be delivered or deposited by the Mortgage Loan Seller pursuant to this Agreement (other than amounts from reserve accounts and originals of letters of credit, which shall be transferred to the applicable Master Servicer) for each Mortgage Loan. If the applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, the original Mortgage Note, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been satisfied upon such Mortgage Loan Seller’s delivery of a copy or duplicate original of such Mortgage Note, together with an affidavit certifying that the original thereof has been lost or destroyed and indemnifying the Trustee and the Trust. If the applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents and/or instruments referred to in clauses (ii), (iv), (vii) and (ix) of the definition of “Mortgage File” (or, if applicable, a copy thereof) with evidence of filing or recording thereon (if intended to be recorded or filed), solely because of a delay caused by the public filing or recording office where such document or instrument has been delivered, or will be delivered within 10 Business Days of the Closing Date, for filing or recordation, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been satisfied on a provisional basis as of the Closing Date as to such non-delivered document or instrument, and such non-delivered document or instrument shall be deemed to have been included in the Mortgage File, if a duplicate original or a photocopy of such non-delivered document or instrument (certified by the applicable public filing or recording office, the applicable title insurance company or the applicable Mortgage Loan Seller to be a true and complete copy of the original thereof submitted or to be submitted for filing or recording) is delivered to the Custodian on or before the date set forth herein, and either the original of such non-delivered document or instrument, or a photocopy thereof (certified by the appropriate county recorder’s office or the applicable title insurance company, in the case of the documents and/or instruments referred to in clause (ii) of the definition of “Mortgage File”, to be a true and complete copy of the original thereof submitted for recording), with evidence of filing or recording thereon, is delivered to the Custodian within one hundred-eighty (180) days of the Closing Date (or within such longer period, not to exceed eighteen (18) months, after the Closing Date as the Custodian shall consent to as long as the applicable Mortgage Loan Seller is, as certified in writing to the Trustee and the Custodian no less often than every ninety (90) days following such 180–day period after the Closing Date, attempting in good faith to obtain from the appropriate

 

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public filing office or county recorder’s office such original or photocopy). If the applicable Mortgage Loan Seller is required to, but cannot, deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents and/or instruments referred to in clauses (ii), (iv), (vii), and (ix) (or, if applicable, a copy thereof) of the definition of “Mortgage File,” with evidence of filing or recording thereon (if intended to be recorded or filed), for any other reason, including, without limitation, that such non-delivered document or instrument has been lost or destroyed, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been satisfied as to such non-delivered document or instrument, and such non-delivered document or instrument shall be deemed to have been included in the Mortgage File, if a photocopy of such non-delivered document or instrument (with evidence of filing or recording thereon and certified in the case of the documents and/or instruments referred to in clause (ii) of the definition of “Mortgage File” by the appropriate county recorder’s office or the applicable title insurance company to be a true and complete copy of the original thereof submitted for recording) is delivered to the Custodian on or before the date set forth herein. Neither the Trustee nor any Custodian shall in any way be liable for any failure by any Mortgage Loan Seller or the Depositor to comply with the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b). If, on the Closing Date as to any Mortgage Loan, subject to the next sentence, the applicable Mortgage Loan Seller is required to, but cannot, deliver (in complete and recordable form or form suitable for filing or recording, if applicable) any one of the assignments in favor of the Trustee referred to in clause (iii), clause (v), or clause (x) of the definition of “Mortgage File” solely because of the unavailability of filing or recording information as to any existing document or instrument, such Mortgage Loan Seller may provisionally satisfy the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) with respect to such assignment by delivering with respect to such Mortgage Loan on the Closing Date an omnibus assignment of such Mortgage Loan substantially in the form of Exhibit H; provided that all required original assignments with respect to such Mortgage Loan (in fully complete and recordable form or form suitable for filing or recording, if applicable) are delivered to the Custodian within one hundred-eighty (180) days after the Closing Date (or within such longer period, not to exceed eighteen (18) months, which the Custodian shall consent to so long as the applicable Mortgage Loan Seller is, as certified in writing to the Trustee and the Custodian no less often than every ninety (90) days following such 180–day period after the Closing Date, attempting in good faith to obtain from the appropriate public filing office or county recorder’s office the applicable filing or recording information as to the related document or instrument); and provided, further, that in the case of a Non-Serviced Mortgage Loan, the delivery of any such assignments shall be subject to clause (e) of the final proviso to the definition of “Mortgage File” herein. As to any Mortgage Loan, the related Mortgage Loan Seller or its agent is responsible for recording or filing, as applicable, any one of the assignments in favor of the Trustee referred to in clause (iii), clause (v), or clause (x) of the definition of “Mortgage File”, and such Mortgage Loan Seller may provisionally satisfy the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) with respect to such assignment by delivering to the Custodian with respect to such Mortgage Loan on the Closing Date a copy of such assignment in the form sent for recording or filing or (except

 

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for recording or filing information not yet available) to be sent for recording or filing; provided that an original or copy of such assignment (with evidence of recording or filing, as applicable, indicated thereon) shall be delivered to the Custodian as contemplated by Section 2.01(c) of this Agreement. Notwithstanding anything herein to the contrary, with respect to letters of credit referred to in clause (xii) of the definition of “Mortgage File”, the applicable Mortgage Loan Seller shall deliver the original to the applicable Master Servicer (which letter of credit shall be titled in the name of, or assigned to, “Wells Fargo Bank, National Association, as General Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36” or “National Cooperative Bank, N.A., as NCB Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36”, as applicable), and a copy to the Custodian or, if such original has been submitted by the applicable Mortgage Loan Seller to the issuing bank to effect a reissuance, assignment or amendment of such letter of credit (changing the beneficiary thereof to the applicable Master Servicer (in care of the Trustee, as titled above) that may be required in order for such Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents), the applicable Mortgage Loan Seller shall be deemed to have satisfied the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) by delivering with respect to any letter(s) of credit a copy thereof to the Custodian indicating that such document has been delivered to the issuing bank for reissuance or an Officer’s Certificate from the applicable Master Servicer certifying that it holds the letter(s) of credit pursuant to this Section 2.01(b), one of which shall be delivered to the Custodian within forty-five (45) days after the Closing Date. If a letter of credit referred to in the previous sentence is not in a form that would allow the applicable Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents, the applicable Mortgage Loan Seller shall deliver the appropriate assignment or amendment documents (or copies of such assignment or amendment documents if the related Mortgage Loan Seller has submitted the originals to the related issuer of such letter of credit for processing) to the Custodian within forty-five (45) days of the Closing Date. If not otherwise paid by the related Mortgagor, the applicable Mortgage Loan Seller shall pay any costs of assignment or amendment of such letter(s) of credit required in order for the applicable Master Servicer to draw on such letter(s) of credit on behalf of the Trust and shall cooperate with the reasonable requests of such Master Servicer in connection with effectuating a draw under any such letter of credit prior to the date such letter of credit is assigned or amended in order that it may be drawn by such Master Servicer on behalf of the Trust.

 

(c)          Except in the case of a Non-Serviced Mortgage Loan, the related Mortgage Loan Seller is required at its sole cost and expense, to itself, or to engage a third party to, put each Assignment of Mortgage, each assignment of Assignment of Leases and each assignment of each UCC Financing Statement (collectively, the “Assignments” and, individually, “Assignment”) relating to the Mortgage Loans

 

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conveyed by it under the applicable Mortgage Loan Purchase Agreement in proper form for filing or recording, as applicable, and to submit such Assignments for filing or recording, as the case may be, in the applicable public filing or recording office. On the Closing Date, the Mortgage Loan Sellers may deliver one (1) omnibus assignment for all such Mortgage Loans substantially in the form of Exhibit H hereto to the Custodian as provided in Section 2.01(b). Except under the circumstances provided for in the last sentence of this subsection (c) and except in the case of a Non-Serviced Mortgage Loan, the related Mortgage Loan Seller will itself, or a third party at such Mortgage Loan Seller’s expense will, promptly (and in any event within one hundred-twenty (120) days after the later of the Closing Date and the related Mortgage Loan Seller’s actual receipt of the related documents and the necessary recording and filing information) cause to be submitted for recording or filing, as the case may be, in the appropriate public office for real property records or UCC Financing Statements, as appropriate, each Assignment. Each such Assignment submitted for recording shall reflect that it (or a file copy thereof in the case of a UCC Assignment) should be returned by the public recording office to the Custodian or its designee following recording or filing (or to the related Mortgage Loan Seller or its agent who will then be responsible for delivery of the same to the Custodian or its designee). Any such Assignment received by the Custodian shall be promptly included in the related Mortgage File and be deemed a part thereof, and any such Assignment received by the related Mortgage Loan Seller or its agent shall be required to be delivered to the Custodian to be included as part of the related Mortgage File within thirty (30) days after receipt. If any such document or instrument is determined to be incomplete or not to meet the recording or filing requirements of the jurisdiction in which it is to be recorded or filed, or is lost by the public office or returned unrecorded or unfiled, as the case may be, because of a defect therein, on or about one hundred-eighty (180) days after the Closing Date, the related Mortgage Loan Seller or its designee shall prepare, at its own expense, a substitute therefor or cure such defect, as the case may be, and thereafter the related Mortgage Loan Seller or its designee shall, at the expense of such Mortgage Loan Seller, upon receipt thereof cause the same to be duly recorded or filed, as appropriate. If, by the first anniversary of the Closing Date, the Custodian has not received confirmation of the recording or filing as the case may be, of any such Assignment, it shall so advise the related Mortgage Loan Seller who may then pursue such confirmation itself or request that the Custodian pursue such confirmation at the related Mortgage Loan Seller’s expense, and upon such a request and provision for payment of such expenses satisfactory to the Custodian, the Custodian, at the expense of the applicable Mortgage Loan Seller, shall cause a search of the land records of each applicable jurisdiction and of the records of the offices of the applicable Secretary of State for confirmation that the Assignment appears in such records and retain a copy of such confirmation in the related Mortgage File. In the event that confirmation of the recording or filing of an Assignment cannot be obtained, the Custodian or the related Mortgage Loan Seller, as applicable, shall promptly inform the other and the Custodian shall provide such Mortgage Loan Seller with a copy of the Assignment and request the preparation of a new Assignment. The related Mortgage Loan Seller shall pay the expenses for the preparation of replacement Assignments for any Assignments which, having been properly submitted for filing or recording to the appropriate governmental office by the Custodian, fail to appear of record and must be resubmitted.

 

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Notwithstanding the foregoing, there shall be no requirement to record any assignment to the Trustee referred to in clause (iii) or (v) of the definition of “Mortgage File,” or to file any UCC-3 to the Trustee referred to in clause (ix) of the definition of “Mortgage File,” in those jurisdictions where, in the written opinion of local counsel (which opinion shall be an expense of the related Mortgage Loan Seller) acceptable to the Depositor and the Trustee, such recordation and/or filing is not required to protect the Trustee’s interest in the related Mortgage Loan against sale, further assignment, satisfaction or discharge by the related Mortgage Loan Seller, the applicable Master Servicer, the applicable Special Servicer, any Sub-Servicer or the Depositor.

 

(d)          All documents and records in the Depositor’s or the applicable Mortgage Loan Seller’s possession relating to the Mortgage Loans (including, in each case, financial statements, operating statements and any other information provided by the respective Mortgagor from time to time, but excluding the applicable Mortgage Loan Seller’s internal communications (including such communications between such Mortgage Loan Seller and its Affiliates) and underwriting analysis (including documents prepared by the applicable Mortgage Loan Seller or any of its Affiliates for such purposes), draft documents, attorney-client communications that are privileged communications or constitute legal or other due diligence analyses and credit underwriting or due diligence analyses or data) that (i) are not required to be a part of a Mortgage File in accordance with the definition thereof and (ii) are reasonably necessary for the servicing of each such Mortgage Loan, together with copies of all documents in each Mortgage File, shall be delivered by the Depositor or the applicable Mortgage Loan Seller to the applicable Master Servicer within five (5) Business Days after the Closing Date and shall be held by such Master Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders (and as holder of the Lower-Tier Regular Interests) and, if applicable, on behalf of the related Companion Holder. Such documents and records shall be any documents and records (with the exception of any items excluded under the immediately preceding sentence) that would otherwise be a part of the Servicing File.

 

(e)          In connection with the Depositor’s assignment pursuant to subsection (a) above, the Depositor shall deliver to the Trustee and the applicable Master Servicer, on or before two (2) Business Days after the Closing Date, a fully executed original counterpart of each of the Mortgage Loan Purchase Agreements, as in full force and effect, without amendment or modification, on the Closing Date.

 

(f)          The Depositor shall use its reasonable best efforts to require that, promptly after the Closing Date, but in all events within three (3) Business Days after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds on deposit in escrow accounts maintained with respect to the Mortgage Loans (other than any Non-Serviced Mortgage Loan) transferred by such Mortgage Loan Seller, whether such accounts are held in the name of the applicable Mortgage Loan Seller or any other name to be transferred to the applicable Master Servicer (or a Sub-Servicer) for deposit into Servicing Accounts.

 

(g)          With respect to the Mortgage Loans secured by the Mortgaged Properties identified as Mortgage Loan Numbers 6, 8, 10, 14, 25, 32, 37, 39, 44 and 48

 

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on the Mortgage Loan Schedule, which are each 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 Trustee for the benefit of the Certificateholders or otherwise have a new comfort letter (or any such new document or acknowledgement as may be contemplated under the existing comfort letter) issued in the name of the Trustee for the benefit of the Certificateholders, the related Mortgage Loan Seller or its designee shall 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 applicable Master Servicer) within forty-five (45) days of the Closing Date (or any shorter period if required by the applicable comfort letter), and the applicable 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). If the applicable Master Servicer is unable to acquire any such replacement comfort letter (or new document or acknowledgement, as applicable) within 120 days of the Closing Date, such Master Servicer shall notify the related Mortgage Loan Seller that no such replacement comfort letter has been received.

 

(h)         Each Mortgage Loan Purchase Agreement shall provide that within sixty (60) days after the Closing Date, each Mortgage Loan Seller shall deliver or cause to be delivered the Diligence Files for each of its Mortgage Loans to the Depositor by uploading such Diligence Files to the Designated Site. Promptly upon completion of such delivery of the Diligence Files (but in no event later than sixty (60) days after the Closing Date), the applicable Mortgage Loan Seller shall provide the Depositor a certificate (with a copy (which may be sent by e-mail) to each of the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Directing Certificateholder, the Asset Representations Reviewer and the Operating Advisor) certifying that the electronic copies of the documents and information uploaded to the Designated Site constitute all documents and information required under the definition of “Diligence File” and such Diligence Files are organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and the applicable Mortgage Loan Seller (the “Diligence File Certification”).

 

(i)          Notwithstanding anything to the contrary contained in this Section 2.01 or in Section 2.02, in connection with each Servicing Shift Whole Loan, (1) instruments of assignment to the Trustee may be in blank and need not be recorded pursuant to this Agreement (other than the endorsements to the Note(s) evidencing the related Servicing Shift Mortgage Loan) until the earlier of (i) the Servicing Shift Securitization Date, in which case such instruments shall be assigned and recorded in accordance with the related Non-Serviced PSA, and (ii) the Servicing Shift Whole Loan becoming a Specially Serviced Loan prior to the Servicing Shift Securitization Date, in which case assignments and recordations shall be effected in accordance with this Section 2.01 until the occurrence, if any, of the Servicing Shift Securitization Date, (2) no letter of credit need be amended (including, without limitation, to change the beneficiary thereon) until the earliest of (i) the Servicing Shift Securitization Date, in which case such amendment shall be in accordance with the related Non-Serviced PSA, (ii) the Servicing Shift Whole Loan becoming a Specially Serviced Loan prior to the Servicing Shift Securitization Date in which case such amendment shall be effected in accordance with

 

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the terms of this Section 2.01 and (iii) the earlier of (A) 180 days after the Closing Date and (B) any such time as any such letter of credit is required to be drawn upon by the applicable Master Servicer in which case such amendment shall be effected in accordance with the terms of this Section 2.01, and (3) on and following the Servicing Shift Securitization Date, the Person selling the related Servicing Shift Lead Note to the related Non-Serviced 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 Mortgage Loan documents relating to the Servicing Shift Whole Loan in its possession (other than the original Note(s) evidencing the Servicing Shift Mortgage Loan) to the related Non-Serviced Trustee or the related Non-Serviced Custodian, (b) if the right under clause (a) is exercised, required to cause the retention by or delivery to the Custodian of photocopies of Mortgage Loan documents related to the Servicing Shift Whole Loan so delivered to such Non-Serviced Trustee or such Non-Serviced 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 Non-Serviced Trustee or related Non-Serviced 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 (x) and (xii) of the definition of “Mortgage File” for the Servicing Shift Whole Loan to the related Non-Serviced Master Servicer.

 

Section 2.02     Acceptance by Trustee. (a) The Trustee, by the execution and delivery of this Agreement (1) acknowledges receipt by it or the Custodian on its behalf, subject to the provisions of Section 2.01, in good faith and without notice of any adverse claim, of the applicable documents specified in clause (i) of the definition of “Mortgage File” with respect to each Mortgage Loan and of all other assets included in the Trust Fund and (2) declares (a) that it or the Custodian on its behalf holds and will hold such documents and the other documents delivered or caused to be delivered by the Mortgage Loan Sellers that constitute the Mortgage Files in the name of the Trust for the benefit of all present and future Certificateholders and Serviced Companion Noteholders, as applicable, and (b) that it holds and will hold such other assets included in the Trust Fund, in trust for the exclusive use and benefit of all present and future Certificateholders (and for the benefit of the Trustee as holder of the Lower-Tier Regular Interests), as applicable. If any Mortgage Loan Seller is unable to deliver or cause the delivery of any original Mortgage Note, such Mortgage Loan Seller may deliver a copy of such Mortgage Note, together with a signed lost note affidavit and appropriate indemnity and shall thereby be deemed to have satisfied the document delivery requirements of Section 2.01 and of this Section 2.02.

 

(b)          Within sixty (60) days after the Closing Date (or with respect to a Qualified Substitute Mortgage Loan within sixty (60) days after the Due Date in the month of substitution), the Custodian, shall review the Mortgage Loan documents delivered or caused to be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and, promptly following such review (but in no event later than sixty (60) days after the Closing Date), the Custodian shall, in the form attached as Exhibit Q, certify in writing to the Depositor, the Master Servicers, the Special Servicers, the

 

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Directing Certificateholder (so long as no Consultation Termination Event shall have occurred and be continuing and only with respect to Mortgage Loans other than any Excluded Loan), the Trustee, the Certificate Administrator, the Asset Representations Reviewer, the Operating Advisor and the applicable Mortgage Loan Seller (as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full) that, except as specifically identified in any exception report annexed to such writing (the “Custodial Exception Report”), (i) subject to the final proviso of the definition of “Mortgage File” herein and Section 2.01 hereof, all documents specified in clauses (i) through (v), (viii), (ix), (xi), (xii) and (xiii), if any, of the definition of “Mortgage File”, as applicable, are in its possession, (ii) the foregoing documents delivered or caused to be delivered by the Mortgage Loan Sellers have been reviewed by the Custodian and appear regular on their face and appear to be executed and to relate to such Mortgage Loan, and (iii) based on such examination and only as to the foregoing documents, the information set forth in the Mortgage Loan Schedule with respect to the items specified in clauses (iv), (vi) and (viii)(c) in the definition of “Mortgage Loan Schedule” is correct. With respect to each Mortgage Loan listed on the Custodial Exception Report, the Custodian shall specifically identify such Mortgage Loan together with the nature of such exception (in the form reasonably acceptable to the Custodian and the related Mortgage Loan Seller and separating items required to be in the Mortgage File but never delivered from items which were delivered by the related Mortgage Loan Seller but are out for filing or recording and have not been returned by the filing office or the recorder’s office).

 

(c)          The Custodian shall review the Mortgage Loan documents received subsequent to the Closing Date; and, on or about the first anniversary of the Closing Date, the Custodian shall, in the form attached as Exhibit Q, certify in writing to each of the Depositor, the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Directing Certificateholder and the applicable Mortgage Loan Seller (as to each Mortgage Loan listed on the Mortgage Loan Schedule (other than any related Mortgage Loan as to which a Liquidation Event has occurred) or any related Mortgage Loan specifically identified in any exception report annexed to such writing) that, (i) subject to the final proviso of the definition of “Mortgage File” herein and Section 2.01 hereof, all documents specified in clauses (i) through (v), (viii), (ix), (xi), (xii) and (xiii), if any, of the definition of “Mortgage File”, as applicable, are in its possession, (ii) the foregoing documents delivered or caused to be delivered by the Mortgage Loan Sellers have been reviewed by the Custodian and appear regular on their face and appear to be executed and relate to such Mortgage Loan, if applicable, and (iii) based on such examination and only as to the foregoing documents, the information set forth in the Mortgage Loan Schedule with respect to the items specified in clauses (iv), (vi) and (viii)(c) in the definition of “Mortgage Loan Schedule” is correct.

 

(d)          Notwithstanding anything contained in this Section 2.02 and Section 2.03(b) to the contrary, in the case of a Material Defect in any of the documents specified in clauses (ii) through (v), (vii), (viii) and (ix) in the definition of “Mortgage File”, which Material Defect results solely from a delay in the return of the related documents from the applicable filing or recording office and gives rise to a repurchase or substitution obligation on the part of the related Mortgage Loan Seller with respect to the

 

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subject Mortgage Loan pursuant to the related Mortgage Loan Purchase Agreement, the Directing Certificateholder, in its sole judgment, may (other than with respect to any Excluded Loan and, with respect to any other Mortgage Loan, only prior to the occurrence and continuance of a Control Termination Event), and the applicable Special Servicer may, in accordance with the Servicing Standard, after the occurrence and during the continuance of a Control Termination Event, permit the related Mortgage Loan Seller in lieu of repurchasing or substituting for the related Mortgage Loan, to deposit with the applicable Master Servicer an amount, to be held in trust in a segregated Eligible Account (which may be a sub-account of the Collection Account), equal to 25% of the Stated Principal Balance of the related Mortgage Loan (in the alternative, the related Mortgage Loan Seller may deliver to the applicable Master Servicer a letter of credit in such amount, with a copy to the Custodian). Such funds or letter of credit, as applicable, shall be held by the applicable Master Servicer (i) until the date on which the Custodian determines and notifies such Master Servicer that such Material Defect has been cured or the related Mortgage Loan is no longer part of the Trust Fund, at which time such Master Servicer shall return such funds (or letter of credit) to the related Mortgage Loan Seller, or (ii) until same are applied to the Purchase Price (or the Substitution Shortfall Amount, if applicable) as set forth below in this Section 2.02(d) in the event of a repurchase or substitution by the related Mortgage Loan Seller. Notwithstanding the two immediately preceding sentences, if the applicable Master Servicer or the applicable Special Servicer certifies to the Trustee, the Certificate Administrator and the Custodian that it has determined in the exercise of its reasonable judgment that the document with respect to which such Material Defect exists is required in connection with an imminent enforcement of the mortgagee’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the related Mortgage Loan, establishing the validity or priority of any lien on collateral securing the related Mortgage Loan or for any immediate significant servicing obligation, the related Mortgage Loan Seller shall be required to repurchase or substitute for the related Mortgage Loan in accordance with, and to the extent required by, the terms and conditions of Section 2.03(b) and Section 5 of the related Mortgage Loan Purchase Agreement; provided, however, that such Mortgage Loan Seller shall not be required to repurchase the Mortgage Loan for a period of ninety (90) days after receipt of a notice to repurchase (together with any applicable extension period) if it is attempting to recover the document from the applicable filing or recording office and provides an officer’s certificate setting forth what actions such Mortgage Loan Seller is pursuing in connection with such recovery. In the event of a repurchase or substitution, upon the date of such repurchase or substitution, and in the event that the related Mortgage Loan Seller has delivered a letter of credit to the applicable Master Servicer in accordance with this Section 2.02(d), such Master Servicer shall, to the extent necessary, draw on the letter of credit and deposit the proceeds of such draw, into its Collection Account to be applied to the Purchase Price (or the Substitution Shortfall Amount, if applicable, in which event, the amount of such funds or proceeds that exceed the Substitution Shortfall Amount shall be returned to the related Mortgage Loan Seller) in accordance with Section 2.03(b). All such funds deposited in the Collection Accounts shall be invested in Permitted Investments, at the direction and for the benefit of the related Mortgage Loan Seller. Such funds shall be treated as an “outside reserve fund” under the REMIC Provisions,

 

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which, together with any reimbursement from the Lower-Tier REMIC, is beneficially owned by the related Mortgage Loan Seller for federal income tax purposes, which Mortgage Loan Seller shall remain liable for any taxes payable on income or gain with respect thereto.

 

(e)          It is herein acknowledged that neither the Trustee nor any Custodian is under any duty or obligation (i) to determine whether any of the documents specified in clauses (vi), (vii) and (xii) through (xviii) of the definition of “Mortgage File” exist or are required to be delivered by the Depositor, the Mortgage Loan Sellers or any other Person (unless identified on the Mortgage Loan Checklist) or (ii) to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loans delivered to it to determine that the same are genuine, enforceable, duly authorized, sufficient to perfect and maintain the perfection of a security interest or appropriate for the represented purpose or that they are other than what they purport to be on their face and, with respect to the documents specified in clause (viii) of the definition of the “Mortgage File”, whether the insurance is effective as of the date of the recordation, whether all endorsements or riders issued are included in the file or if the policy has not been issued whether any acceptable replacement document has been dated the date of the related Mortgage Loan funding. Further, with respect to the UCC Financing Statements referenced in the Mortgage File, absent actual knowledge to the contrary or copies of UCC Financing Statements delivered to the Custodian as part of the Mortgage File indicating otherwise, the Custodian may assume, for the purposes of the filings and the certification to be delivered in accordance with this Section 2.02 that the related Mortgage File should include one state level UCC Financing Statement filing for each Mortgaged Property (or with respect to any Mortgage Loan that has two or more Mortgagors, for each Mortgagor, except to the extent multiple Mortgagors are named as debtors in the same UCC Financing Statement filing), or if the Custodian has received notice that a particular UCC Financing Statement was filed as a fixture filing, that the related Mortgage File should include only a local UCC Financing Statement filing for each Mortgaged Property (or with respect to any Mortgage Loan that has two or more Mortgagors, for each Mortgagor, except to the extent multiple Mortgagors are named as debtors in the same UCC Financing Statement filing). The assignments of the UCC Financing Statements to be assigned to the Trust will be delivered on the national forms (or on such other form as may be acceptable for filing or recording in the applicable jurisdiction) and in a format suitable for filing or recording, as applicable, and will be filed or recorded in the jurisdiction(s) where such UCC Financing Statements were originally filed or recorded, as indicated in the documents provided, and in accordance with then-current laws.

 

(f)          If, in the process of reviewing the Mortgage Files or at any time thereafter, the Custodian finds any document or documents constituting a part of a Mortgage File (1) not to have been properly executed, (2) subject to the timing requirements of Sections 2.01(b) and 2.01(c), not to have been delivered, (3) to contain information that does not conform in any material respect with the corresponding information set forth in the Mortgage Loan Schedule or (4) to be defective on its face (each, a “Defect” in the related Mortgage File), the Custodian shall promptly so notify the Depositor, the Trustee, the applicable Master Servicer, the applicable Special Servicer,

 

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the Certificate Administrator, the Directing Certificateholder, the applicable Mortgage Loan Seller (and in no event later than ninety (90) days after the Closing Date and every calendar quarter thereafter until all Defects are corrected) by providing a Custodial Exception Report setting forth for each affected Mortgage Loan, with particularity, the nature of such Defect (in a form reasonably acceptable to the Custodian and such Mortgage Loan Seller and separating items required to be in the Mortgage File but never delivered from items which were delivered by such Mortgage Loan Seller but are out for recording or filing and have not been returned by the recorder’s office or filing office).

 

(g)          If a Master Servicer or a Special Servicer (i) receives a Repurchase Request or any other request or demand from any Person for a Mortgage Loan Seller to repurchase or replace a Mortgage Loan because of an alleged Defect or Breach (together with a Repurchase Request, a “15Ga-1 Repurchase Request”) (such Master Servicer or such Special Servicer, as applicable, to the extent it receives such 15Ga-1 Repurchase Request, the “Repurchase Request Recipient” with respect to such 15Ga-1 Repurchase Request); or (ii) receives any withdrawal of a 15Ga-1 Repurchase Request by the Person making such 15Ga-1 Repurchase Request or any rejection of a 15Ga-1 Repurchase Request (or such 15Ga-1 Repurchase Request is forwarded to the applicable Master Servicer or the applicable Special Servicer by another party hereto), then the Repurchase Request Recipient shall deliver notice (which may be by electronic format so long as a “backup” hard copy of such notice is also delivered on or prior to the next Business Day) of such 15Ga-1 Repurchase Request or withdrawal or rejection of a 15Ga-1 Repurchase Request (each, a “15Ga-1 Notice”) to the applicable Mortgage Loan Seller (other than in the case of a rejection by such Mortgage Loan Seller) and the Depositor, in each case within ten (10) Business Days from such Repurchase Request Recipient’s receipt thereof.

 

Each 15Ga-1 Notice shall include (i) the identity of the related Mortgage Loan, (ii) the date the 15Ga-1 Repurchase Request is received by the Repurchase Request Recipient or the date any withdrawal of the 15Ga-1 Repurchase Request is received by the Repurchase Request Recipient, as applicable, (iii) if known, the basis for the 15Ga-1 Repurchase Request (as asserted in the 15Ga-1 Repurchase Request), (iv) the identity of the Person making such 15Ga-1 Repurchase Request, and (v) a statement from the Repurchase Request Recipient as to whether it currently plans to pursue such 15Ga-1 Repurchase Request.

 

A Repurchase Request Recipient shall not be required to provide any information in a 15Ga-1 Notice protected by the attorney-client privilege or attorney work product doctrines. The Mortgage Loan Purchase Agreements will provide that (i) any 15Ga-1 Notice provided pursuant to this Section 2.02(g) is so provided only to assist the Mortgage Loan Sellers and Depositor or their respective Affiliates to comply with Rule 15Ga-1 under the Exchange Act, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii) (A) no action taken by, or inaction of, a Repurchase Request Recipient and (B) no information provided pursuant to this Section 2.02(g) by a Repurchase Request Recipient, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to the related Mortgage Loan Purchase Agreement, including with respect to any 15Ga-1 Repurchase Request that is the subject of a 15Ga-1 Notice.

 

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In the event that the Depositor, the Trustee, either Master Servicer, either Special Servicer, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or the Custodian receives a 15Ga-1 Repurchase Request, such party shall promptly forward or otherwise provide written notice of such 15Ga-1 Repurchase Request to the applicable Special Servicer and include the following statement in the related correspondence: “This is a ‘15Ga-1 Repurchase Request’ under Section 2.02 of the Pooling and Servicing Agreement relating to the Wells Fargo Commercial Mortgage Trust 2016-C36, Commercial Mortgage Pass-Through Certificates, Series 2016-C36 requiring action by you as the ‘Repurchase Request Recipient’ thereunder.” Upon receipt of such 15Ga-1 Repurchase Request by the applicable Special Servicer, such party shall be deemed to be the Repurchase Request Recipient in respect of such 15Ga-1 Repurchase Request, and such party shall comply with the procedures set forth in this Section 2.02(g) with respect to such 15Ga-1 Repurchase Request. In no event shall the Custodian, by virtue of this provision, be required to provide any notice other than as set forth in Section 2.02 of this Agreement in connection with its review of the Mortgage File.

 

If the Depositor, the Trustee, either Master Servicer, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or the Custodian receives notice or has knowledge of a withdrawal or a rejection of a 15Ga-1 Repurchase Request of which notice has been previously received or given, and such notice was not received from or copied to the applicable Special Servicer, then such party shall give notice of such withdrawal or rejection to such Special Servicer. Any such notice received by the Trustee, the Certificate Administrator, the Certificate Registrar, Operating Advisor, Asset Representations Reviewer or the Custodian shall also be provided to the Depositor and, in the case of a withdrawal notice, to the applicable Mortgage Loan Seller.

 

In the event that a Mortgage Loan is repurchased or replaced pursuant to Section 2.03 of this Agreement, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans) shall promptly notify the Depositor of such repurchase or replacement.

 

Section 2.03     Representations, Warranties and Covenants of the Depositor; Mortgage Loan Sellers’ Repurchase or Substitution of Mortgage Loans for Defects in Mortgage Files and Breaches of Representations and Warranties. (a) The Depositor hereby represents and warrants that:

 

(i)           The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of North Carolina, and the Depositor has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;

 

(ii)          Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the obligations of the Depositor hereunder are the legal, valid and binding obligations of the Depositor, enforceable

 

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against the Depositor in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(iii)          The execution and delivery of this Agreement and the performance of its obligations hereunder by the Depositor will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a breach of or constitute a default under any of the terms, conditions or provisions of the certificate of incorporation or the by-laws of the Depositor or any indenture, agreement or instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any lien on any of the Depositor’s assets or property, which would materially and adversely affect the ability of the Depositor to carry out the transactions contemplated by this Agreement; the Depositor has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the execution, delivery and performance by the Depositor of this Agreement;

 

(iv)          There is no action, suit or proceeding pending or, to the Depositor’s knowledge, threatened against the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of the Mortgage Loans or the ability of the Depositor to carry out the transactions contemplated by this Agreement; and

 

(v)           The Depositor is the lawful owner of the Mortgage Loans with the full right to transfer the Mortgage Loans to the Trust, and the Mortgage Loans have been validly transferred to the Trust.

 

(b)          After receipt of a Repurchase Request, the applicable Special Servicer shall request in writing that the applicable Mortgage Loan Seller, not later than ninety (90) days after (i) except in the case of the succeeding clause (ii), the applicable Mortgage Loan Seller’s receipt of such notice of such Repurchase Request or, if earlier, such Mortgage Loan Seller’s discovery of such Material Defect or (ii) in the case of a Material Defect relating to a Mortgage Loan not being a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a qualified mortgage, the earlier of (x) discovery by the related Mortgage Loan Seller or any party to this Agreement of such Material Defect and (y) receipt of notice of the Material Defect from any party to this Agreement (such ninety (90) day period, the “Initial Cure Period”), (A) cure such Material Defect in all material respects, at such Mortgage Loan Seller’s own expense, including reimbursement of any related reasonable additional expenses of the Trust reasonably incurred by any party to this Agreement, (B) repurchase the affected Mortgage Loan or REO Loan (excluding any related Serviced Companion Loan, if applicable), at the applicable Purchase Price and in conformity with the applicable Mortgage Loan Purchase Agreement and this Agreement or (C) substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for

 

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which no substitution will be permitted) for such affected Mortgage Loan or REO Loan (provided that in no event shall any such substitution occur on or after the second anniversary of the Closing Date) and pay the applicable Master Servicer for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith and in conformity with the applicable Mortgage Loan Purchase Agreement and this Agreement; provided, however, that except with respect to a Material Defect resulting solely from the failure by the Mortgage Loan Seller to deliver to the Trustee or Custodian the actual policy of lender’s title insurance required pursuant to clause (viii) of the definition of Mortgage File by a date not later than eighteen (18) months following the Closing Date, if such Material Defect is capable of being cured but is not cured within the Initial Cure Period, and the applicable Mortgage Loan Seller has commenced and is diligently proceeding with the cure of such Material Defect within the Initial Cure Period, the applicable Mortgage Loan Seller shall have an additional ninety (90) days commencing immediately upon the expiration of the Initial Cure Period (such additional ninety (90) day period, the “Extended Cure Period”) to complete such cure (or, failing such cure, to repurchase the related Mortgage Loan or REO Loan (excluding any related Serviced Companion Loan, if applicable) or substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for which no substitution will be permitted)) and provided, further, that with respect to such Extended Cure Period the applicable Mortgage Loan Seller shall have delivered an officer’s certificate to the Trustee, the Certificate Administrator (who shall promptly deliver a copy of such officer’s certificate to the 17g-5 Information Provider), the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and (with respect to any Mortgage Loan other than an Excluded Loan, prior to the occurrence of a Consultation Termination Event) the Directing Certificateholder, setting forth the reason such Material Defect is not capable of being cured within the Initial Cure Period and what actions the applicable Mortgage Loan Seller is pursuing in connection with the cure thereof and stating that the applicable Mortgage Loan Seller anticipates that such Material Defect will be cured within the Extended Cure Period. Notwithstanding the foregoing, any Defect or Breach which causes any Mortgage Loan not to be a “qualified mortgage” (within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a qualified mortgage) shall be deemed to materially and adversely affect the interests of Certificateholders therein, and (subject to the applicable Mortgage Loan Seller’s right to cure such Defect or Breach during the Initial Cure Period) such Mortgage Loan shall be repurchased or substituted for without regard to the Extended Cure Period described in the preceding sentence. If the affected Mortgage Loan is to be repurchased, the funds in the amount of the Purchase Price remitted by the applicable Mortgage Loan Seller are to be remitted by wire transfer to the applicable Master Servicer for deposit into the Collection Account. In the event a Special Servicer is required to enforce the Repurchase Request related to a Non-Specially Serviced Loan under this Section 2.03(b), within five (5) days of request by such Special Servicer, the applicable Master Servicer shall deliver a copy of the Servicing File with respect to any such Non-Specially Serviced Loan.

 

If a Mortgage Loan Seller, in connection with a Material Defect (or an allegation of a Material Defect) pertaining to a Mortgage Loan, makes a cash payment pursuant to an agreement or a settlement between the applicable Mortgage Loan Seller and the applicable

 

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Special Servicer, on behalf of the Trust (and, with respect to any Mortgage Loan other than an Excluded Loan or a Servicing Shift Mortgage Loan, in either case, with the consent of the Directing Certificateholder if no Control Termination Event has occurred and is continuing) (each such payment, a “Loss of Value Payment”) with respect to such Mortgage Loan, the amount of such Loss of Value Payment shall be deposited into the Loss of Value Reserve Fund to be applied in accordance with Section 3.05(g) of this Agreement. The Loss of Value Payment shall include the portion of any Liquidation Fees payable to the Special Servicer in respect of such Loss of Value Payment and the portion of fees of the Asset Representations Reviewer attributable to the Asset Review of such Mortgage Loan and not previously paid by the Mortgage Loan Seller. If such Loss of Value Payment is made, the Loss of Value Payment shall serve as the sole remedy available to the Certificateholders and the Trustee on their behalf regarding any such Material Defect in lieu of any obligation of the Mortgage Loan Seller to otherwise cure such Material Defect or repurchase or substitute for the affected Mortgage Loan based on such Material Defect under any circumstances. This paragraph is intended to apply only to a mutual agreement or settlement between the applicable Mortgage Loan Seller and the applicable Special Servicer on behalf of the Trust, provided that (i) prior to any such agreement or settlement nothing in this paragraph shall preclude the Mortgage Loan Seller or the applicable Master Servicer or the applicable Special Servicer, as applicable, from exercising any of its rights related to a Material Defect in the manner and timing set forth in the related Mortgage Loan Purchase Agreement or this Section 2.03 (excluding this paragraph) (including any right to cure, repurchase or substitute for such Mortgage Loan), (ii) such Loss of Value Payment shall not be greater than the Purchase Price of the affected Mortgage Loan; and (iii) a Material Defect as a result of a Mortgage Loan not constituting a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a “qualified mortgage”) may not be cured by a Loss of Value Payment.

 

The Mortgage Loan Seller agrees that, with respect to any Non-Serviced Mortgage Loan, any “Material Defect” relating to a “Defect” in the related “Mortgage File” (or analogous terms) under the related Non-Serviced PSA shall constitute a Material Defect relating to a Defect in the related Mortgage File under any Mortgage Loan Purchase Agreement to the extent the applicable Mortgage Loan Seller repurchases the Non-Serviced Companion Loan from the trust created pursuant to such Non-Serviced PSA; provided, however, that the foregoing shall not apply to any such Material Defect (or analogous term) related solely to the promissory note for any related Non-Serviced Companion Loan.

 

If any Breach that constitutes a Material Defect pertains to a representation or warranty that the related Mortgage Loan documents or any particular Mortgage Loan document requires the related Mortgagor to bear the costs and expenses associated with any particular action or matter under such Mortgage Loan document(s), then the related Mortgage Loan Seller shall cure such Breach within the applicable cure period (as the same may be extended) by reimbursing the Trust (by wire transfer of immediately available funds) for the reasonable amount of any such costs and expenses incurred by the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator, the Trustee or the Trust that are incurred as a result of such Breach and have not been reimbursed by the related Mortgagor. Except as provided in the proviso to the immediately preceding sentence, the related Mortgage Loan Seller shall remit the amount of such costs and expenses and upon its making such remittance, the related Mortgage Loan Seller shall be deemed to have cured such Breach in all respects. To the extent any fees or expenses that are the subject of a cure by the related

 

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Mortgage Loan Seller are subsequently obtained from the related Mortgagor, the portion of the cure payment made by the related Mortgage Loan Seller equal to such fees or expenses obtained from the related Mortgagor shall promptly be returned to the related Mortgage Loan Seller. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) after the related Due Date in the month of substitution, and Periodic Payments due with respect to each Mortgage Loan being repurchased or replaced after the related Cut-off Date and received by the applicable Master Servicer or the applicable Special Servicer on behalf of the Trust on or prior to the related date of repurchase or substitution, shall be part of the Trust Fund. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) on or prior to the related Due Date in the month of substitution, and Periodic Payments due with respect to each Mortgage Loan being repurchased or replaced and received by the applicable Master Servicer or the applicable Special Servicer on behalf of the Trust after the related date of repurchase or substitution, shall not be part of the Trust Fund and are to be remitted by such Master Servicer or such Special Servicer to the applicable Mortgage Loan Seller effecting the related repurchase or substitution promptly following receipt. Notwithstanding anything contained in this Agreement or the related Mortgage Loan Purchase Agreement, no delay in either the discovery of a Material Defect or in providing notice of such Material Defect shall relieve the applicable Mortgage Loan Seller of its obligation to cure, repurchase or substitute for (or make a Loss of Value Payment with respect to) the related Mortgage Loan if it is otherwise required to do so under the related Mortgage Loan Purchase Agreement and/or this Article II unless (i) the related Mortgage Loan Seller did not otherwise discover or have knowledge of such Material Defect, (ii) such delay is a result of the failure by a party to the applicable Mortgage Loan Purchase Agreement, or this Agreement, to provide prompt notice as required by the terms of the applicable Mortgage Loan Purchase Agreement, or this Agreement, after such party has actual knowledge of such Material Defect (knowledge shall not be deemed to exist by reason of the Custodial Exception Report), (iii) such Material Defect does not relate to the applicable Mortgage Loan not being a “qualified mortgage” within the meaning of Code Section 860G(a)(3), but without regard to the rule of Treasury regulations Section 1.860G-2(f)(2) that causes a defective obligation to be treated as a qualified mortgage, and (iv) such delay precludes such Mortgage Loan Seller from curing such Material Defect. Notwithstanding the foregoing, if a Mortgage Loan is not secured by a Mortgaged Property that is, in whole or in part, a hotel, restaurant (operated by a borrower), healthcare facility, nursing home, assisted living facility, self-storage facility, theater or fitness center (operated by a borrower), then the failure to deliver copies of the UCC Financing Statements with respect to such Mortgage Loan shall not be a Material Defect.

 

Pursuant to each Mortgage Loan Purchase Agreement, if there is a Material Defect with respect to one or more Mortgaged Properties with respect to a Mortgage Loan, the related Mortgage Loan Seller shall not be obligated to repurchase the Mortgage Loan if (i) the affected Mortgaged Property may be released pursuant to the terms of any partial release provisions in the related Mortgage Loan documents (and such Mortgaged Property is, in fact, released), (ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan documents and the related Mortgage Loan Seller provides an opinion of counsel to the effect that such release in lieu of repurchase would not (A) cause any Trust REMIC to fail to qualify as a REMIC or (B) result in the imposition of a tax upon any Trust REMIC or the issuing entity and (iii) each applicable Rating Agency has provided a Rating Agency Confirmation.

 

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(c)          Subject to the applicable Mortgage Loan Seller’s right to cure as contemplated above in this Section 2.03, and further subject to Section 2.01(b) and Section 2.01(c), any of the following shall cause a document in the Mortgage File to be deemed to have a Material Defect: (a) the absence from the Mortgage File of the original signed Mortgage Note, unless the Mortgage File contains a signed lost note affidavit and indemnity with a copy of the Mortgage Note that appears to be regular on its face; (b) the absence from the Mortgage File of the original signed Mortgage that appears to be regular on its face, unless there is included in the Mortgage File either a copy of the Mortgage with evidence of recording thereon or a copy of the Mortgage and a certificate from the related Mortgage Loan Seller stating that the original signed Mortgage was sent for recordation; (c) the absence from the Mortgage File of the item called for by clause (viii) of the definition of Mortgage File; (d) the absence from the Mortgage File of any intervening assignments required to create a complete chain of assignments to the Trustee on behalf of the Trust, unless there is included in the Mortgage File either a copy of the assignment with evidence of recording thereon or a copy of the intervening assignment and a certificate from the related Mortgage Loan Seller stating that the original intervening assignments were sent for filing or recordation, as applicable; (e) the absence from the Mortgage File of any required letter of credit; or (f) with respect to any related leasehold Mortgage Loan, the absence from the related Mortgage File of a copy (or an original, if available) of the related Ground Lease; provided, however, that no Defect (except the Defects previously described in subclauses (a) through (f) of this Section 2.03(c)) shall be considered to materially and adversely affect the value of the related Mortgage Loan, the value of the related Mortgaged Property or the interests of the Trustee or Certificateholders unless the document with respect to which the Defect exists is required in connection with an imminent enforcement of the mortgagee’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the related Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the related Mortgage Loan or for any immediate significant servicing obligation; provided, further, that no Defect relating to any Non-Serviced Mortgage Loan previously described in subclauses (b) through (f) of this Section 2.03(c) shall be considered to materially and adversely affect the value of such Mortgage Loan, the value of the related Mortgaged Property or the interests of the Trustee or Certificateholders unless the related Mortgage Loan Seller, after receipt of notice of such Defect, is unable to produce a copy of the document with respect to which the Defect exists within a reasonable period after receiving such notice or otherwise establish that the original or copy, as applicable, of such document has been delivered, in compliance with the terms of the related Non-Serviced PSA, to the custodian under the related Non-Serviced PSA. Notwithstanding the foregoing, the delivery of executed escrow instructions or a binding commitment to issue a lender’s title insurance policy, as provided in clause (viii) of the definition of Mortgage File herein, in lieu of the delivery of the actual policy of lender’s title insurance, shall not be considered a Material Defect with respect to any Mortgage File if such actual policy is delivered to the Custodian not later than eighteen (18) months following the Closing Date. Notwithstanding the foregoing, to the extent a Mortgage Loan Seller has otherwise complied with its document delivery requirements under this Agreement and the related Mortgage Loan Purchase Agreement, in the event that the Custodian has acknowledged receipt pursuant

 

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to Section 2.02 above of a document that is part of the Mortgage File or a Mortgage Loan Seller can otherwise prove delivery of the document, and the Custodian subsequently loses a document, the fact that such document is lost may not be utilized as the basis for a claim of a Material Defect against a Mortgage Loan Seller pursuant to Section 5(a) of the related Mortgage Loan Purchase Agreement and/or this Section 2.03 and the Custodian shall be liable for any such loss to the extent provided for in Section 8.01 hereof.

 

(d)          In connection with any repurchase of, or substitution of a Qualified Substitute Mortgage Loan for a Mortgage Loan contemplated by this Section 2.03, the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer and the applicable Special Servicer shall each tender to the applicable Mortgage Loan Seller, upon delivery to each of the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer and the applicable Special Servicer of a trust receipt executed by the applicable Mortgage Loan Seller evidencing such repurchase or substitution, all portions of the Mortgage File and other documents pertaining to such Mortgage Loan possessed by each of the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer and the applicable Special Servicer (other than attorney-client communications that are privileged communications), and each document that constitutes a part of the Mortgage File that was endorsed or assigned to the Trustee shall be endorsed or assigned, as the case may be to the applicable Mortgage Loan Seller in the same manner as provided in Section 5 of the related Mortgage Loan Purchase Agreement and, if applicable, the definition of “Mortgage File” herein, so as to vest in such Mortgage Loan Seller the legal and beneficial ownership of such repurchased or substituted Mortgage Loan (including property acquired in respect thereof and proceeds of any insurance policy with respect thereto) and the related Mortgage Loan documents.

 

(e)          Section 5 of each of the Mortgage Loan Purchase Agreements provides the sole remedy available to the Certificateholders (subject to the limitations on the rights of the Certificateholders under this Agreement), or the Trustee on behalf of the Certificateholders, the applicable Master Servicer or the applicable Special Servicer, with respect to any Material Defect; provided, however, that the foregoing shall in no way limit the ability of the applicable Master Servicer, the applicable Special Servicer or the Trustee to take any action against Basis Investment Group LLC, to the extent provided for pursuant to the related Mortgage Loan Purchase Agreement, including, without limitation, pursuant to Section 19 thereof.

 

(f)          The applicable Special Servicer shall, for the benefit of the Certificateholders and the Trustee (as holder of the Lower-Tier Regular Interests), enforce the obligations of the applicable Mortgage Loan Seller under the applicable Mortgage Loan Purchase Agreement. Such enforcement, including, without limitation, the legal prosecution of claims, if any, shall be carried out in such form, to such extent and at such time as the applicable Special Servicer would require were it, in its individual capacity, the owner of the affected Mortgage Loan(s). Any costs incurred by a Special Servicer with respect to the enforcement of the obligations of the applicable Mortgage Loan Seller under the applicable Mortgage Loan Purchase Agreement shall, to the extent not recovered from the applicable Mortgage Loan Seller or the Requesting Certificateholder, be deemed to be Servicing Advances to the extent not otherwise

 

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provided for herein. The applicable Special Servicer shall be reimbursed for the reasonable costs of such enforcement: first, from a specific recovery, if any, of costs, expenses or attorneys’ fees against the applicable Mortgage Loan Seller; second, pursuant to Section 3.05(a)(vii) herein out of the related Purchase Price, to the extent that such expenses are a specific component thereof; and third, if at the conclusion of such enforcement action it is determined that the amounts described in clauses first and second are insufficient, then pursuant to Section 3.05(a)(vii) herein out of general collections on the Mortgage Loans on deposit in the related Collection Account. Any costs, expenses or attorneys’ fees related to a repurchase of a Companion Loan shall be paid pursuant to the related Intercreditor Agreement or pursuant to the documents related to an Other Securitization, if applicable.

 

(g)          If a Mortgage Loan Seller incurs any expense in connection with the curing of a Breach that constitutes a Material Defect, which also constitutes a default under the related Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall have a right, and shall be subrogated to the rights of the Trustee and the Trust under the Mortgage Loan to recover the amount of such expenses from the related Mortgagor; provided, however, that such Mortgage Loan Seller’s rights pursuant to this Section 2.03(g) shall be junior, subject and subordinate to the rights of the Trustee, the Certificate Administrator, the Trust, the Master Servicers and the Special Servicers to recover amounts owed by the related Mortgagor under the terms of such Mortgage Loan including, without limitation, the rights to recover unreimbursed Advances, accrued and unpaid interest on Advances at the Reimbursement Rate, fees owed to the Special Servicers, and unpaid or unreimbursed expenses of the Trustee, the Certificate Administrator, the Trust, the Master Servicers or the Special Servicers allocable to such Mortgage Loan. The applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans) shall use reasonable efforts to recover such expenses for such Mortgage Loan Seller to the extent consistent with the Servicing Standard, but taking into account the subordinate nature of the reimbursement to the related Mortgage Loan Seller; provided, however, that such Master Servicer or such Special Servicer, as applicable, determines in the exercise of its sole discretion consistent with the Servicing Standard that such actions by it will not impair such Master Servicer’s or such Special Servicer’s, as applicable, collection or recovery of principal, interest and other sums due with respect to the related Mortgage Loan that would otherwise be payable to the applicable Master Servicer, such Special Servicer, the Trustee, the Certificate Administrator and the Certificateholders pursuant to the terms of this Agreement; provided, further, that such Special Servicer may waive the collection of amounts due on behalf of such Mortgage Loan Seller in its sole discretion in accordance with the Servicing Standard.

 

(h)          If (i) any Crossed Underlying Loan is required to be repurchased or substituted for in the manner described in this Section 2.03 and (ii) the applicable Material Defect does not constitute a Material Defect as to any other Crossed Underlying Loan in the re