Contract

Exhibit 4.2

 

 

EXECUTION VERSION

 

J.P. MORGAN CHASE COMMERCIAL MORTGAGE SECURITIES CORP.,
as Depositor

 

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

 

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

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Administrator

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee

 

and

 

PENTALPHA SURVEILLANCE LLC,
as Senior Trust Advisor

 

POOLING AND SERVICING AGREEMENT

 

Dated as of

 

August 1, 2015

 

JPMBB Commercial Mortgage Securities Trust 2015-C31
Commercial Mortgage Pass-Through Certificates

 

Series 2015-C31

 

 
 

 

TABLE OF CONTENTS

 

Page

 

Article I
DEFINITIONS
 
Section 1.01   Defined Terms 6
Section 1.02   Certain Calculations 110
Article II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01   Conveyance of Mortgage Loans and the BWP Trust Subordinate Companion Loan 112
Section 2.02   Acceptance by Trustee 118
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 123
Section 2.04   Execution of Certificates; Issuance of Uncertificated Lower-Tier Interests 130
Section 2.05   Creation of the Grantor Trust 131

Article III

 

ADMINISTRATION AND
SERVICING OF THE TRUST FUND

Section 3.01   Master Servicer To Act as Master Servicer; Special Servicer To Act as Special Servicer; Administration of the Mortgage Loans, the Serviced Companion Loans, the BWP Trust Subordinate Companion Loan and REO Properties 131
Section 3.02   Collection of Mortgage Loan Payments 140
Section 3.03   Collection of Taxes, Assessments and Similar Items; Servicing Accounts 144
Section 3.04   The Certificate Account, the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Companion Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve Account, the Class EC Distribution Account and the BWP REMIC Distribution Account 148
Section 3.05   Permitted Withdrawals from the Certificate Account, the Distribution Accounts and the Companion Distribution Account 155

 

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Section 3.06   Investment of Funds in the Certificate Account and the REO Account 166
Section 3.07   Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage 168
Section 3.08   Enforcement of Due-on-Sale Clauses; Assumption Agreements 173
Section 3.09   Realization Upon Defaulted Mortgage Loans, Companion Loans and the BWP Trust Subordinate Companion Loan 179
Section 3.10   Trustee and Certificate Administrator to Cooperate; Release of Mortgage Files 183
Section 3.11   Servicing Compensation 185
Section 3.12   Inspections; Collection of Financial Statements 190
Section 3.13   [Reserved.] 195
Section 3.14   [Reserved.] 195
Section 3.15   Access to Certain Information 195
Section 3.16   Title to REO Property; REO Account 207
Section 3.17   Management of REO Property 209
Section 3.18   Sale of Defaulted Mortgage Loans and REO Properties 211
Section 3.19   Additional Obligations of Master Servicer and Special Servicer 218
Section 3.20   Modifications, Waivers, Amendments and Consents 221
Section 3.21   Transfer of Servicing Between Master Servicer and Special Servicer; Recordkeeping; Asset Status Report 230
Section 3.22   Sub-Servicing Agreements 236
Section 3.23   Representations, Warranties and Covenants of the Master Servicer 239
Section 3.24   Representations, Warranties and Covenants of the Special Servicer 241
Section 3.25   Interest Reserve Account 242
Section 3.26   [Reserved.] 243
Section 3.27   Directing Certificateholder and Senior Trust Advisor Contact with Master Servicer and Special Servicer 243
Section 3.28   Controlling Class Certificateholders and Directing Certificateholder; Certain Rights and Powers of Directing Certificateholder 243
Section 3.29   Intercreditor Agreements 248
Section 3.30   Rating Agency Confirmation 250
Section 3.31   The Senior Trust Advisor 252
Section 3.32   Companion Paying Agent 259
Section 3.33   Companion Register 260
Section 3.34   Certain Matters Relating to the Non-Serviced Mortgage Loan 260
Section 3.35   BWP Trust Subordinate Companion Loan 261
Section 3.36   Subordinate Loan-Specific Directing Certificateholder 263
Section 3.37   Delivery of Excluded Information to the Certificate Administrator 264

Article IV

 

distributions TO CERTIFICATEHOLDERS

Section 4.01   Distributions 264
Section 4.02   Statements to Certificateholders; CREFC® Investor Reporting Packages; Grant of Power of Attorney 276

 

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Section 4.03   P&I Advances 282
Section 4.04   Allocation of Collateral Support Deficit 284
Section 4.05   Appraisal Reductions 286
Section 4.06   Certificate Deferred Interest 289
Section 4.07   Grantor Trust Reporting 291
Section 4.08   Investor Q&A Forum; Investor Registry; and Rating Agency Q&A Forum and Document Request Tool 292

Article V

 

THE CERTIFICATES

Section 5.01   The Certificates 295
Section 5.02   Form and Registration 296
Section 5.03   Registration of Transfer and Exchange of Certificates 298
Section 5.04   Mutilated, Destroyed, Lost or Stolen Certificates 305
Section 5.05   Persons Deemed Owners 306
Section 5.06   Access to List of Certificateholders’ Names and Addresses; Special Notices 306
Section 5.07   Maintenance of Office or Agency 307
Section 5.08   Appointment of Certificate Administrator 307
Section 5.09   Exchangeable Certificates and the Class EC Certificates 308

Article VI

 

THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER, the Senior
Trust Advisor AND THE DIRECTING CERTIFICATEHOLDER

Section 6.01   Liability of the Depositor, the Master Servicer, the Senior Trust Advisor and the Special Servicer 309
Section 6.02   Merger, Consolidation or Conversion of the Depositor, the Master Servicer, the Senior Trust Advisor or the Special Servicer 309
Section 6.03   Limitation on Liability of the Depositor, the Master Servicer, the Special Servicer, the Senior Trust Advisor and Others 311
Section 6.04   Depositor, Master Servicer and Special Servicer Not to Resign 315
Section 6.05   Rights of the Depositor in Respect of the Master Servicer and the Special Servicer 316
Section 6.06   The Master Servicer and the Special Servicer as Certificate Owner 316
Section 6.07   The Directing Certificateholder 317

Article VII

 

SERVICER TERMINATION EVENTS

Section 7.01   Servicer Termination Events; Master Servicer and Special Servicer Termination 322

 

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Section 7.02   Trustee to Act; Appointment of Successor 329
Section 7.03   Notification to Certificateholders 331
Section 7.04   Waiver of Servicer Termination Events 332
Section 7.05   Trustee as Maker of Advances 332

Article VIII

 

CONCERNING THE TRUSTEE AND THE CERTIFICATE ADMINISTRATOR

Section 8.01   Duties of the Trustee and the Certificate Administrator 333
Section 8.02   Certain Matters Affecting the Trustee and the Certificate Administrator 334
Section 8.03   Trustee and Certificate Administrator Not Liable for Validity or Sufficiency of Certificates or Mortgage Loans or BWP Trust Subordinate Companion Loan 336
Section 8.04   Trustee or Certificate Administrator May Own Certificates 336
Section 8.05   Fees and Expenses of Trustee and Certificate Administrator; Indemnification of Trustee and Certificate Administrator 337
Section 8.06   Eligibility Requirements for Trustee and Certificate Administrator 338
Section 8.07   Resignation and Removal of the Trustee and Certificate Administrator 339
Section 8.08   Successor Trustee or Certificate Administrator 341
Section 8.09   Merger or Consolidation of Trustee or Certificate Administrator 342
Section 8.10   Appointment of Co-Trustee or Separate Trustee 342
Section 8.11   Appointment of Custodians 343
Section 8.12   Representations and Warranties of the Trustee 344
Section 8.13   Provision of Information to Certificate Administrator, Master Servicer and Special Servicer 345
Section 8.14   Representations and Warranties of the Certificate Administrator 345
Section 8.15   Compliance with the Patriot Act 347

Article IX

 

TERMINATION

Section 9.01   Termination upon Repurchase or Liquidation of All Mortgage Loans 347
Section 9.02   Additional Termination Requirements 352

Article X

 

ADDITIONAL REMIC PROVISIONS

Section 10.01   REMIC Administration 353
Section 10.02   Use of Agents 357
Section 10.03   Depositor, Master Servicer and Special Servicer to Cooperate with Certificate Administrator 357
Section 10.04   Appointment of REMIC Administrators 357

 

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Article XI

 

EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE

Section 11.01   Intent of the Parties; Reasonableness 358
Section 11.02   Succession; Subcontractors 359
Section 11.03   Filing Obligations 361
Section 11.04   Form 10-D Filings 362
Section 11.05   Form 10-K Filings 365
Section 11.06   Sarbanes-Oxley Certification 368
Section 11.07   Form 8-K Filings 369
Section 11.08   Form 15 Filing 371
Section 11.09   Annual Compliance Statements 371
Section 11.10   Annual Reports on Assessment of Compliance with Servicing Criteria 373
Section 11.11   Annual Independent Public Accountants’ Attestation Report 375
Section 11.12   Indemnification 376
Section 11.13   Amendments 379
Section 11.14   Regulation AB Notices 379
Section 11.15   Certain Matters Relating to the Future Securitization of the Serviced Pari Passu Companion Loans 379
Section 11.16   Certain Matters Regarding Significant Obligors 384
Section 11.17   Impact of Cure Period 385

Article XII

 

MISCELLANEOUS PROVISIONS

Section 12.01   Amendment 385
Section 12.02   Recordation of Agreement; Counterparts 389
Section 12.03   Limitation on Rights of Certificateholders 390
Section 12.04   Governing Law; Submission to Jurisdiction; Waiver of Jury Trial 391
Section 12.05   Notices 392
Section 12.06   Severability of Provisions 397
Section 12.07   Grant of a Security Interest 397
Section 12.08   Successors and Assigns; Third Party Beneficiaries 398
Section 12.09   Article and Section Headings 398
Section 12.10   Notices to the Rating Agencies 398

 

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EXHIBITS

 

Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class A-SB Certificate
Exhibit A-5 Form of Class X-A Certificate
Exhibit A-6 Form of Class X-B Certificate
Exhibit A-7 Form of Class X-C Certificate
Exhibit A-8 Form of Class X-D Certificate
Exhibit A-9 Form of Class A-S Certificate

Exhibit A-10 Form of Class B Certificate
Exhibit A-11 Form of Class C Certificate
Exhibit A-12 Form of Class D Certificate
Exhibit A-13 Form of Class E Certificate
Exhibit A-14 Form of Class F Certificate
Exhibit A-15 Form of Class EC Certificate
Exhibit A-16 Form of Class NR Certificate
Exhibit A-17 Form of Class R Certificate
Exhibit A-18 Form of Class Z Certificate
Exhibit A-19 Form of Class BWP Certificate
Exhibit B Mortgage Loan Schedule
Exhibit CForm of Investment Representation Letter
Exhibit D-1 Form of Transferee Affidavit
Exhibit D-2 Form of Transferor Letter
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 and Class Z Certificates
Exhibit G Form of Statement to Certificateholders
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

 

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Exhibit P-1A Form of Investor Certification for Non-Borrower Party (for Persons other than the Directing Certificateholder and/or a Controlling Class Certificateholder)
Exhibit P-1B Form of Investor Certification for Non-Borrower Party (for the Directing Certificateholder and/or a Controlling Class Certificateholder)
Exhibit P-1C Form of Investor Certification for Borrower Party (for Persons other than the Directing Certificateholder and/or a Controlling Class Certificateholder)
Exhibit P-1D Form of Investor Certification for Borrower Party (for the Directing Certificateholder and/or a Controlling Class Certificateholder)
Exhibit P-1E Form of Notice of Excluded Controlling Class Holder
Exhibit P-1F Form of Notice of Excluded Controlling Class Holder to Certificate Administrator
Exhibit P-1G Form of Certification of the Directing Certificateholder
Exhibit P-2 Form of Certification for NRSROs
Exhibit P-3 Online Market Data Provider Certification
Exhibit Q Custodian Certification/Exception Report
Exhibit R-1 Form of Power of Attorney – Master Servicer
Exhibit R-2 Form of Power of Attorney – Special Servicer
Exhibit S Initial Companion Holders and Initial Class BWP Directing Certificateholder
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 Senior Trust Advisor Annual Report
Exhibit W Form of Notice from Senior Trust Advisor Recommending Replacement of Special Servicer
Exhibit X Form of Confidentiality Agreement
Exhibit Y Form Certification to be Provided with Form 10-K
Exhibit Z-1 Form of Certification to be Provided to Depositor by Certificate Administrator
Exhibit Z-2 Form of Certification to be Provided to Depositor by Master Servicer
Exhibit Z-3 Form of Certification to be Provided to Depositor by Special Servicer
Exhibit Z-4 Form of Certification to be Provided to Depositor by Trustee
Exhibit Z-5 Form of Certification to be Provided to Depositor by Senior Trust Advisor
Exhibit Z-6 Form of Certification to be Provided to Depositor by Custodian
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

 

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Exhibit LL Form of Notice of Exchangeable Certificates for the Class EC Certificates
Exhibit MM Additional Disclosure Notification (Accounts)
Exhibit NN Form of Notice of Purchase of Controlling Class Certificate
Exhibit OO [Reserved]
Exhibit PP Form of Transferee Notice pursuant to Section 3.36(c)

 

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SCHEDULES

 

Schedule 1 Mortgage Loans With Additional Debt
Schedule 2 Class A-SB Planned Principal Balance Schedule
Schedule 3 Mortgage Loans With “Performance”, “Earn-out” or “Holdback” Escrows or Reserves

  

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This Pooling and Servicing Agreement is dated and effective as of August 1, 2015, among J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer and as Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator and as Trustee, and Pentalpha Surveillance LLC, as Senior Trust Advisor.

 

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 fund (the “Trust Fund”) to be created hereunder, the primary assets of which will be a pool of commercial mortgage loans and a separate trust companion loan interest in one commercial mortgage loan. As provided herein, the Certificate Administrator shall elect or shall cause an election to be made to treat designated portions of the Trust Fund (exclusive of the Excess Interest, the proceeds thereof in the Excess Interest Distribution Account, any Exchangeable Certificates that have been exchanged for the Class EC Certificates and the proceeds thereof in the Class EC Distribution Account) for federal income tax purposes as three separate real estate mortgage investment conduits (the “Upper-Tier REMIC”, the “Lower-Tier REMIC” and the “BWP Trust Subordinate Companion Loan REMIC”, and each a “Trust REMIC” as described herein).

 

In addition, the parties intend that the portions of the Trust Fund consisting of (i) any Exchangeable Certificates that have been exchanged for the Class EC Certificates and the Class EC Distribution Account, and (ii) the Excess Interest, the Excess Interest Distribution Account and the proceeds thereof, 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 EC Certificates shall represent undivided beneficial interests in the portion of the Grantor Trust consisting of the exchanged Exchangeable Certificates and the Class EC Distribution Account. The Class EC Certificates do not represent an interest in an entity other than the Trust and, for the avoidance of doubt, the Grantor Trust is not a separate legal entity. The Class Z Certificates shall represent undivided beneficial interests in the portion of the Grantor Trust consisting of the Excess Interest and proceeds thereof in the Excess Interest Distribution Account. As provided herein, the Certificate Administrator shall take all actions expressly required hereunder to ensure that the portion of the Trust Fund consisting of the Grantor Trust maintains its status as a grantor trust under federal income tax law and not be treated as part of the Trust REMICs.

 

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

 

 
 

 

BWP TRUST SUBORDINATE COMPANION LOAN REMIC

 

The BWP Trust Subordinate Companion Loan REMIC will hold the BWP Trust Subordinate Companion Loan and the proceeds of such BWP Trust Subordinate Companion Loan, together with its allocable share of any related property acquired by foreclosure or deed-in-lieu of foreclosure and will issue the Class BWP Certificates as the “regular interests” in the BWP Trust Subordinate Companion Loan REMIC and an uncertificated Class BWP-R Interest represented by the Class R Certificates, as the sole class of residual interests in the BWP Trust Subordinate Companion Loan REMIC. Any Class BWP Available Distribution Amount remaining in the BWP REMIC Distribution Account after all required distributions under this Agreement have been made to the Class BWP Certificates will be deemed distributed to the Class BWP-R Interest and shall be payable to the Holders of the Class R Certificates.

 

LOWER-TIER REMIC

 

The Lower-Tier REMIC will hold the Mortgage Loans (exclusive of Excess Interest) and will issue the Class LA1, Class LA2, Class LA3, Class LASB, Class LAS, Class LB, Class LC, Class LD, Class LE, Class LF and Class LNR Uncertificated Interests (the “Uncertificated Lower-Tier 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 interest” in the Lower-Tier REMIC 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 Uncertificated Lower-Tier Interests and the Class LR Interest:

 

Class Designation 

Interest Rate
or Pass-
Through Rate 

 

Original Lower-Tier
Principal Amount 

Class LA1   (1)  $59,309,000 
Class LA2   (1)  $48,541,000 
Class LA3   (1)  $515,534,000 
Class LASB   (1)  $95,737,000 
Class LAS   (1)  $53,934,000 
Class LB   (1)  $84,753,000 
Class LC   (1)  $47,513,000 
Class LD   (1)  $42,377,000 
Class LE   (1)  $26,967,000 
Class LF   (1)  $16,694,000 
Class LNR   (1)  $35,956,082 
Class LR   None(2)   None 

 

 

 

(1)The interest rate for such Class of Uncertificated Lower-Tier 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 Yield Maintenance Charges. Any Available Distribution Amount remaining in the Lower-Tier REMIC Distribution Account after distributing the

 

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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.

 

UPPER-TIER REMIC

 

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

 

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 Designation   

Initial Pass-Through
Rate

 

Original
Certificate
Balance or
Notional Amount 

Class A-1 Certificates   1.6658%   $59,309,000 
Class A-2 Certificates   3.0079%   $48,541,000 
Class A-3 Certificates   3.8014%   $515,534,000 
Class A-SB Certificates   3.5395%   $95,737,000 
Class X-A Certificates   1.196189%(1)  $773,055,000(2)
Class X-B Certificates   0.0000%(1)(3)  $84,753,000(2)
Class X-C Certificates   0.0000%(1)(3)  $47,513,000(2)
Class X-D Certificates   0.500000%(1)  $42,377,000(2)
Class A-S Certificates   4.1058%   $53,934,000 
Class B Certificates   4.772724%   $84,753,000 
Class C Certificates   4.772724%   $47,513,000 
Class D Certificates   4.272724%   $42,377,000 
Class E Certificates   4.772724%   $26,967,000 
Class F Certificates   4.772724%   $16,694,000 
Class NR Certificates   4.772724%   $35,956,082 
Class BWP Certificates(4)   10.9780%   $4,990,079 
Class R Certificates   None(5)   N/A 
Class Z Certificates(6)   None(5)   N/A 
        

 

 

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

 

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

 

(3)Neither the Class X-B Certificates nor the Class X-C Certificates will be entitled to receive distributions of principal other than a payment of $100 on the first Distribution Date which will be deemed a payment of principal on the principal balance of the REMIC regular interest represented by the Class X-B Certificates or the Class X-C Certificates, as applicable, for federal income tax purposes.

 

(4)The Class BWP Certificates are issued by the BWP Trust Subordinate Companion Loan REMIC.

 

(5)Neither the Class R nor the Class Z Certificates will have a Certificate Balance or a Notional Amount, bear interest or be entitled to distributions of Yield Maintenance Charges. Any Available Distribution Amount 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.

 

(6)The Class Z Certificates are issued by the Grantor Trust.

 

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 $1,027,315,082. The principal balance of the BWP Trust Subordinate Companion Loan as of the Cut-off Date was approximately $4,990,080.

 

The initial Certificate Balance of a Class of Exchangeable Certificates represents the principal balance of such Class without giving effect to any exchange and conversion for Class EC Certificates. The initial Certificate Balance of the Class EC Certificates is equal to the aggregate of the initial Certificate Balances of the Exchangeable Certificates and represents the maximum principal balance of the Class EC Certificates that could be issued in an exchange and conversion. The Class EC Certificates will not have a Pass-Through Rate, but will receive distributions of principal and interest that would otherwise be distributable to the Exchangeable Certificates that were converted in an exchange for such Class EC Certificates. For the initial Distribution Date, the effective Pass-Through Rate of the Class EC Certificates is 4.579545%.

 

The Civic Opera Building Pari Passu Companion Loan, The Roosevelt New Orleans Waldorf Astoria Pari Passu Companion Loans, the Sunbelt Portfolio Pari Passu Companion Loan and the Brunswick Portfolio Pari Passu Companion Loans (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 assets 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 Civic Opera Building Whole Loan consists of the Civic Opera Building Mortgage Loan and the Civic Opera Building Pari Passu Companion Loan. The Civic Opera Building Mortgage Loan and the Civic Opera Building Pari Passu Companion Loan are pari passu with each other. The Civic Opera Building Mortgage Loan is part of the Trust Fund. The Civic Opera Building Pari Passu Companion Loan is not part of the Trust Fund. The Civic Opera Building Mortgage Loan and the Civic Opera Building Pari Passu Companion Loan will

 

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be serviced and administered in accordance with this Agreement and the Civic Opera Building Intercreditor Agreement.

 

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

 

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

 

The Brunswick Portfolio Whole Loan consists of the Brunswick Portfolio Mortgage Loan and the Brunswick Portfolio Pari Passu Companion Loans. The Brunswick Portfolio Mortgage Loan and the Brunswick Portfolio Pari Passu Companion Loans are pari passu with each other. The Brunswick Portfolio Mortgage Loan is part of the Trust Fund. The Brunswick Portfolio Pari Passu Companion Loans are not part of the Trust Fund. The Brunswick Portfolio Mortgage Loan and the Brunswick Portfolio Pari Passu Companion Loans will be serviced and administered in accordance with the JPMBB Commercial Mortgage Securities Trust 2015-C30 Pooling and Servicing Agreement and the Brunswick Portfolio Intercreditor Agreement.

 

The Bridgewater Place Whole Loan consists of the Bridgewater Place Mortgage Loan and the BWP Trust Subordinate Companion Loan. The BWP Trust Subordinate Companion Loan is subordinate to the Bridgewater Place Mortgage Loan, is part of the Trust Fund and will be evidenced by the Class BWP Certificates. The Bridgewater Place Mortgage Loan and the BWP Trust Subordinate Companion Loan will be serviced and administered in accordance with this Agreement and the Bridgewater Place Intercreditor Agreement.

 

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

 

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Article I

DEFINITIONS

 

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

 

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 (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.

 

AB Control Appraisal Period”: With respect to (i) any AB Whole Loan, the period during which the holder of any AB Subordinate Companion Loan is the AB Whole Loan Controlling Holder and (ii) the Bridgewater Place Whole Loan, the Bridgewater Place Control Appraisal Period.

 

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 related to the Trust.

 

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

 

AB Mortgaged Property”: The Mortgaged Property which secures the related AB Whole Loan. For the avoidance of doubt, there is no AB Mortgaged Property related to the Trust.

 

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 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 related to the Trust.

 

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AB Whole Loan”: A Whole Loan, which consists of such Mortgage Loan, Pari Passu Companion Loans (if any) and the related AB Subordinate Companion Loan. For the avoidance of doubt, there is no AB Whole Loan related to the Trust.

 

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

 

Acceptable Insurance Default”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Whole Loan or Trust AB 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 Master Servicer and the Special Servicer may forbear taking any enforcement action, provided that the Special Servicer has determined, in its reasonable judgment, based on inquiry consistent with the Servicing Standard and (unless a Control 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 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 6.07 hereof)) (or, with respect to the Trust AB Whole Loan, and prior to the occurrence and continuance of any related AB Control Appraisal Period, with the consent of the related Subordinate Loan-Specific Directing Certificateholder to the extent required under the related Intercreditor Agreement) (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 the Trust AB Whole Loan, and prior to any related AB Control Appraisal Period, with the consent of the related Subordinate Loan-Specific Directing Certificateholder to the extent required under the related Intercreditor Agreement) (or, with respect to a Serviced AB Whole Loan, the related 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, the related Subordinate Loan-Specific Directing Certificateholder or any applicable AB Whole Loan Controlling Holder, as applicable, the Special Servicer is not required to do so. Each of the Master Servicer (at its own expense) and the Special Servicer (at the expense of the Trust Fund) shall be entitled to rely on insurance consultants in making the determinations described above.

 

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Acceptance Notice”: As defined in Section 3.35(g).

 

Accrued Certificate Interest”: With respect to each Distribution Date and each Class of Regular Certificates, an amount equal to interest for the related Interest Accrual Period at the Pass-Through Rate of such Class of Certificates for such Distribution Date, accrued on the related Certificate Balance (or with respect to the Class X Certificates, the related Notional Amount of such Class) outstanding immediately prior to such Distribution Date (provided that for interest accrual purposes any distributions in reduction of Certificate Balance or Notional Amount or reductions in Certificate Balance or Notional Amount as a result of allocations of Collateral Support Deficit on the Distribution Date occurring in an Interest Accrual Period shall be deemed to have been made on the first day of such Interest Accrual Period). Accrued Certificate Interest shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. With respect to each Class of Exchangeable Certificates and the Class EC Certificates, for purposes of determining allocations and distributions under Section 4.01(a) of this Agreement as between the Exchangeable Certificates and the Class EC Certificates, all amounts of Accrued Certificate Interest of each Class of Exchangeable Certificates for any Distribution Date shall be determined without regard to any exchange and conversion of such Exchangeable Certificates for Class EC Certificates; provided, however, that all amounts of Accrued Certificate Interest that are allocable to Exchangeable Certificates that have been exchanged and converted for Class EC Certificates shall be deemed allocable to such Class EC Certificates, without duplication.

 

Accrued Interest From Recoveries”: With respect to each Distribution Date and any Class of Principal Balance Certificates that had an increase to its Certificate Balance as a result of the Trust Fund’s recovery of Nonrecoverable Advances that were previously reimbursed to the Master Servicer or Trustee, as applicable, from the general principal collections, is an amount equal to interest at the Pass-Through Rate applicable to that Class for the applicable Interest Accrual Periods on the amount of such increase to its Certificate Balance accrued from the Distribution Date on which the related Collateral Support Deficit was allocated to such Class as a result of the reimbursement of Nonrecoverable Advances from the Trust (whether such Collateral Support Deficit was allocated as a result of the initial allocation of such Collateral Support Deficit or as a result of further allocations of Collateral Support Deficits unrelated to such initial allocations) to, but not including, the Distribution Date on which the Certificate Balance was so increased. With respect to each Class of Exchangeable Certificates and the Class EC Certificates, for purposes of determining allocations and distributions under Section 4.01(a) of this Agreement as between the Exchangeable Certificates and the Class EC Certificates, all amounts of Accrued Interest From Recoveries of each Class of Exchangeable Certificates for any Distribution Date shall be determined without regard to any exchange and conversion of such Exchangeable Certificates for Class EC Certificates; provided, however, that all amounts of Accrued Interest From Recoveries that would otherwise be allocable to Exchangeable Certificates that have been exchanged and converted for Class EC Certificates shall be deemed allocable to such Class EC Certificates, without duplication.

 

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

 

Actual/360 Mortgage Loans”: The Mortgage Loans and the BWP Trust Subordinate Companion Loan, to the extent indicated as such in the Mortgage Loan Schedule.

 

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

 

Administrative Cost Rate”: As of any date of determination and with respect to each Mortgage Loan or BWP Trust Subordinate Companion Loan, as applicable, a per annum rate equal to the sum of the Servicing Fee Rate, the Certificate Administrator Fee Rate (which such fee rate accounts for the Trustee Fee), the Senior Trust Advisor Fee Rate and the CREFC® Intellectual Property Royalty License Fee Rate, in each case computed on the basis of the Stated Principal Balance of the related Mortgage Loan or BWP Trust Subordinate Companion Loan, as applicable, and in the same manner as interest is calculated on such Mortgage Loan or BWP Trust Subordinate Companion Loan, as applicable.

 

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

 

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

 

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 Independent MAI appraiser with at least five (5) years’ experience in properties of like kind and in the same area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2) in the definition of Appraisal Reduction.

 

Appraisal Reduced Interest”: With respect to any Mortgage Loan, accrued and unpaid interest at the related Mortgage Rate that is not advanced by the Master Servicer or Trustee solely due to the reduction of the interest portion of the related P&I Advance pursuant to Section 4.03(e) hereof.

 

Appraisal Reduction”: For any Distribution Date and for any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan, Serviced Whole Loan, BWP Trust Subordinate Companion Loan or Trust AB Whole Loan as to which any Appraisal Reduction Event has occurred, will be an amount, calculated by the Special Servicer ((i) prior to the occurrence of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan, in consultation with the Directing Certificateholder, and, after the occurrence and during the continuance of a Control Event, in consultation with the Senior Trust Advisor), as of the first Determination Date that is at least ten (10) Business Days following the date on which the Special Servicer receives an Appraisal or conducts a valuation described below, equal to the excess of (a) the Stated Principal Balance of that Mortgage Loan, the Stated Principal Balance of the applicable Serviced Whole Loan or the Stated Principal Balance of the Trust AB Whole Loan, as the case may be, over (b) the excess of (i) the sum of (A) 90% of the Appraised Value of the related Mortgaged Property as determined (1) by one or more Appraisals obtained by the Special Servicer with respect to any Mortgage Loan (together with any other Mortgage Loan cross-collateralized with such Mortgage Loan), Serviced Whole Loan or Trust AB Whole Loan, as the case may be, with an outstanding principal balance equal to or in excess of $2,000,000 (the costs of which shall be paid by the Master Servicer as an Advance) or (2) by an internal valuation performed by the Special Servicer with respect to any Mortgage Loan (together with any other Mortgage Loan cross-collateralized with such Mortgage Loan), Serviced Whole Loan or Trust AB Whole Loan, as the case may be, with an outstanding principal balance less than $2,000,000, minus, with respect to any Appraisals, such downward adjustments as the Special Servicer may make (without implying any obligation to do so) based upon its review of

 

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the Appraisal and any other information it deems relevant and (B) all escrows, letters of credit and reserves in respect of such Mortgage Loan, Serviced Whole Loan or Trust AB Whole Loan, as applicable, as of the date of calculation over (ii) the sum of, as of the Due Date occurring in the month of the date of determination, (A) to the extent not previously advanced by the Master Servicer or the Trustee, all unpaid interest due on such Mortgage Loan, Serviced Whole Loan or Trust AB Whole Loan, as the case may be, at a per annum rate equal to its Mortgage Rate (and, with respect to the Trust AB Whole Loan or any AB Whole Loan, any accrued and unpaid interest on the related BWP Trust Subordinate Companion Loan or Subordinate Companion Loan, as applicable), (B) all P&I Advances on the related Mortgage Loan and all Servicing Advances on the related Mortgage Loan, Serviced Whole Loan or Trust AB Whole Loan, as applicable, not reimbursed from proceeds of such Mortgage Loan, Serviced Whole Loan or Trust AB Whole Loan, as applicable, and interest thereon at the Reimbursement Rate in respect of such Mortgage Loan, Serviced Whole Loan or Trust AB 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 with respect to such Mortgage Loan, Serviced Whole Loan or Trust AB Whole Loan, as the case may be (which taxes, premiums, ground rents and other amounts have not been the subject of an Advance by the Master Servicer or the Trustee, as applicable); provided, however, without limiting the Special Servicer’s obligation to order and obtain such Appraisal or perform such valuation, if the Special Servicer has not obtained an Appraisal or performed such valuation, as applicable, referred to above within sixty (60) days of the Appraisal Reduction Event (or with respect to the Appraisal Reduction Events set forth in clauses (i) and (vi) of the definition of Appraisal Reduction Event, within one hundred-twenty (120) days (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 amount of the Appraisal Reduction shall be deemed to be an amount equal to 25% of the current Stated Principal Balance of the related Mortgage Loan, Serviced Whole Loan or Trust AB Whole Loan, as applicable, until such time as such appraisal or valuation referred to above is received by the Special Servicer and the Appraisal Reduction is calculated as of the first Determination Date that is at least ten (10) Business Days thereafter. Within sixty (60) days after the Appraisal Reduction Event, the Special Servicer shall order and use reasonable efforts to receive an Appraisal (the cost of which shall be paid by the Master Servicer as a Servicing Advance); provided, further, however, that with respect to an Appraisal Reduction Event as set forth in clause (i) of the definition of Appraisal Reduction Event, the Special Servicer shall 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 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 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 Special Servicer to the 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, the Master Servicer shall provide the Special Servicer with the information as set forth in Section 4.05(c). The Master Servicer will not calculate Appraisal Reductions.

 

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With respect to any Appraisal Reduction 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 related to a Mortgage Loan or BWP Trust Subordinate Companion Loan, as the case may be, or the related REO Property will be reduced to zero as of the date on which such Mortgage Loan or BWP Trust Subordinate Companion Loan, as the case may be, is paid in full, liquidated, repurchased or otherwise removed from the Trust Fund or as otherwise set forth in Section 4.05(d).

 

Any Appraisal Reduction 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 Pooling Agreement.

 

Appraisal Reduction Event”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), any related Serviced Pari Passu Companion Loan, Serviced Whole Loan, BWP Trust Subordinate Companion Loan and Trust AB 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, Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, (ii) the date on which a reduction in the amount of Monthly Payments on such Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, or a change in any other material economic term of such Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, (other than an extension of the Maturity Date), becomes effective as a result of a modification of such Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, by the Special Servicer, (iii) the date on which a receiver has been appointed for the Mortgaged Property, (iv) the date on which a Mortgagor declares bankruptcy, (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, Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, except where a refinancing is anticipated within one hundred-twenty (120) days after the Maturity Date of the Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, in which case one hundred-twenty (120) days after such uncured delinquency, and (vii) immediately after such Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, becomes an REO Loan; provided, however, that an Appraisal Reduction Event shall not occur at any time when the aggregate Certificate Balances of all Classes of Regular Certificates (other than the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates) have been reduced to zero. The Special Servicer shall notify the Master Servicer, the Directing Certificateholder, the related Subordinate Loan-Specific Directing Certificateholder (in the case of a Trust AB Whole Loan) and the Senior Trust Advisor, or the Master Servicer shall notify the Special Servicer and the Senior Trust Advisor, as applicable, promptly upon such Person having notice or knowledge of the occurrence

 

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

 

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

 

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

 

Asset Status Report”: As defined in Section 3.21(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”: An assignment of Mortgage without recourse, notice of transfer or equivalent instrument, in recordable form, which is sufficient under the laws of the jurisdiction in which the related Mortgaged Property is located to reflect of record the sale of the Mortgage, which assignment, notice of transfer or equivalent instrument may be in the form of one or more blanket assignments covering Mortgages encumbering Mortgaged Properties located in the same jurisdiction, if permitted by law and acceptable for recording.

 

Assumed Scheduled Payment”: For any Due Period and with respect to any Mortgage Loan or BWP Trust Subordinate Companion Loan, as the case may be, 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 or BWP Trust Subordinate Companion Loan), an amount equal to the sum of (a) the principal portion of the Monthly Payment that would have been due on such Mortgage Loan, BWP Trust Subordinate Companion 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 or BWP Trust Subordinate Companion 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 or BWP Trust Subordinate Companion Loan, as the case may be, in connection with a default or bankruptcy (or similar proceeding), and (b) interest on

 

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the Stated Principal Balance of such Mortgage Loan, BWP Trust Subordinate Companion Loan or REO Loan (excluding, for purposes of determining P&I Advances, the portion allocable to any related Companion Loan or BWP Trust Subordinate Companion Loan, if applicable) at the applicable Mortgage Rate (net of interest at the Servicing Fee Rate).

 

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

 

(a)          the aggregate amount of all cash received on the Mortgage Loans (in the case of the Non-Serviced Mortgage Loan, only to the extent received by the Trust pursuant to the related Non-Serviced Pooling Agreement and/or the related Non-Serviced Intercreditor Agreement) and any REO Property (including Compensating Interest Payments with respect to the Mortgage Loans required to be deposited by the Master Servicer pursuant to Section 3.19(a)) on deposit in the Certificate Account (in each case, exclusive of any amount on deposit in or credited to any portion of the Certificate Account that is held for the benefit of the Companion Holders or the holders of the Class BWP Certificates), the Distribution Accounts (other than the BWP REMIC Distribution Account) and, without duplication, the REO Account, in each case, exclusive of any amount on deposit in or credited to any portion of the REO Account that is held for the benefit of the Companion Holders or the holders of the Class BWP Certificates, as of the close of business on the related P&I Advance Date, exclusive of (without duplication):

 

(i)          all Monthly Payments paid by the Mortgagors of a Mortgage Loan that are due on a Due Date following the end of the related Due 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 Certificate Account 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;

 

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(iv)         with respect to the Interest Reserve 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 Net Mortgage Rate to the extent such amounts are Withheld Amounts;

 

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

 

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

 

(vii)        all amounts deposited in the Certificate Account, the Lower-Tier REMIC Distribution Account and, without duplication, the REO Account in error; and

 

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

 

(b)         if and to the extent not already included in clause (a) hereof, the aggregate amount transferred from the REO Account allocable to the Mortgage Loans to the Certificate Account for such Distribution Date pursuant to Section 3.16(c);

 

(c)         the aggregate amount of any P&I Advances made by the Master Servicer or the Trustee, as applicable, with respect to the Mortgage Loans and the Distribution Date (net of the related Certificate Administrator 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)         for the 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 3.25(b).

 

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

 

Balloon Mortgage Loan”: Any Mortgage Loan, Companion Loan or BWP Trust Subordinate 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, Companion Loan or BWP Trust Subordinate Companion Loan extending beyond its Maturity Date.

 

Balloon Payment”: With respect to any Balloon Mortgage Loan, as of any date of determination, the Monthly 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).

 

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Base Interest Fraction”: With respect to any Principal Prepayment on any Mortgage Loan and with respect to any Class A-1, Class A-2, Class A-3, Class A-SB, Class A-S, Class B, Class C and Class D Certificates, a fraction (a) whose numerator is the greater of (x) zero and (y) the difference between (i) the Pass-Through Rate on such Class of Certificates, and (ii) the discount rate used in accordance with the related Mortgage Loan documents in calculating the Yield Maintenance Charge with respect to such Principal Prepayment and (b) whose denominator is the greater of zero and the difference between (i) the Mortgage Rate on such Mortgage Loan (or with respect to any Mortgage Loan that is part of a Serviced Whole Loan or Trust AB Whole Loan, the Mortgage Rate of such Serviced Whole Loan or Trust AB Whole Loan, as applicable), and (ii) the discount rate used in accordance with the related Mortgage Loan documents in calculating the Yield Maintenance Charge with respect to such Principal Prepayment. However, (1) under no circumstances shall the Base Interest Fraction be greater than one or less than zero, (2) if such discount rate is greater than or equal to the Mortgage Rate on the related Mortgage Loan, Serviced Whole Loan or Trust AB Whole Loan, as applicable, and is greater than or equal to the Pass-Through Rate on such Class of Certificates, then the Base Interest Fraction will equal zero and (3) if the discount rate is greater than or equal to the Mortgage Rate on such Mortgage Loan, Serviced Whole Loan or Trust AB Whole Loan, as applicable, and is less than the Pass-Through Rate on such Class of Certificates, then the Base Interest Fraction will be one (1). The Master Servicer shall provide to the Certificate Administrator the discount rate referenced above for purposes of calculating the Base Interest Fraction.

 

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

 

Borrower Party”: (i) A borrower, a Mortgagor, a manager of a Mortgaged Property or any Affiliate thereof or (ii) the holder of a mezzanine loan that is secured by a pledge of the direct (or indirect) equity interests in the borrower(s) under a Mortgage Loan or Whole Loan, which holder has commenced foreclosure or enforcement proceedings with respect to the pledge of such equity interests.

 

Breach”: As defined in Section 2.03(b).

 

Bridgewater Place Whole Loan”: Collectively, the whole mortgage loan that is subject to the Bridgewater Place Intercreditor Agreement, which is evidenced by the Bridgewater Place Mortgage Notes and secured by a single Mortgage on the Bridgewater Place Mortgaged Property. References herein to the Bridgewater Place Whole Loan shall be construed to refer to the aggregate indebtedness under the Bridgewater Place Mortgage Loan and the related BWP Trust Subordinate Companion Loan.

 

Bridgewater Place Control Appraisal Period”: The “Control Appraisal Period” identified in the Bridgewater Place Intercreditor Agreement; provided, however, a Bridgewater Place Control Appraisal Period shall not be deemed to have occurred in the event that the Subordinate Loan-Specific Directing Certificateholder exercises a “Threshold Event Cure” on behalf of the “Controlling Noteholder” (each as defined therein) within thirty (30) days of a “Control Appraisal Period” occurring thereunder.

 

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Bridgewater Place Intercreditor Agreement”: That certain Agreement Between Noteholders, dated as of June 30, 2015, by and between the holder of the BWP Trust Subordinate Companion Loan and the holder of the Bridgewater Place Mortgage Loan, relating to the relative rights of such holders of the Bridgewater Place Whole Loan, as the same may be further amended in accordance with the terms thereof.

 

Bridgewater Place Mortgage Loan”: With respect to the Bridgewater Place Whole Loan, the senior interest that is included in the Trust (identified as Mortgage Loan No. 11 on the Mortgage Loan Schedule), which is evidenced by the related promissory note A, and is senior in right of payment to the BWP Trust Subordinate Companion Loan to the extent set forth in the Bridgewater Place Intercreditor Agreement.

 

Bridgewater Place Mortgage Notes”: Either of the promissory notes evidencing the Bridgewater Place Whole Loan made by the related mortgagor and secured by the mortgage on the Bridgewater Place Mortgaged Property, as the context requires.

 

Bridgewater Place Mortgaged Property”: The Mortgaged Property that secures the Bridgewater Place Whole Loan.

 

Brunswick Portfolio Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of July 28, 2015, by and between the holders of the Brunswick Portfolio Pari Passu Companion Loans and the holder of the Brunswick Portfolio Mortgage Loan, relating to the relative rights of such holders of the Brunswick Portfolio Whole Loan, as the same may be further amended in accordance with the terms thereof.

 

Brunswick Portfolio Mortgage Loan”: With respect to the Brunswick Portfolio Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 9 on the Mortgage Loan Schedule), which is designated as promissory note A-2, and is pari passu in right of payment with the Brunswick Portfolio Pari Passu Companion Loans to the extent set forth in the Brunswick Portfolio Intercreditor Agreement.

 

Brunswick Portfolio Mortgaged Property”: The Mortgaged Property which secures the Brunswick Portfolio Whole Loan.

 

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

 

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

 

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Business Day”: Any day other than a Saturday, a Sunday or a day on which banking institutions in Charlotte, North Carolina, Oakland, California, Overland Park, Kansas, Minneapolis, Minnesota, New York, New York, Pittsburgh, Pennsylvania, San Francisco, California, 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 the Master Servicer or the Special Servicer is located, or the New York Stock Exchange or the Federal Reserve System of the United States of America are authorized or obligated by law or executive order to remain closed.

 

BWP REMIC Distribution Account”: With respect to the BWP Trust Subordinate Companion Loan, 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(h) of this Agreement, which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wells Fargo Bank, National Association, as Trustee, for the benefit of the holders of JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass Through Certificates, BWP REMIC Distribution Account,” and which must be an Eligible Account or a subaccount of an Eligible Account. The BWP REMIC Distribution Account shall not be an asset of Lower-Tier REMIC or the Upper-Tier REMIC formed hereunder, but rather shall be an asset of the BWP Trust Subordinate Companion Loan REMIC.

 

BWP Trust Subordinate Companion Loan”: The subordinate interest in the Bridgewater Place Whole Loan made by the related mortgagor and secured by the mortgage on the Bridgewater Place Mortgaged Property and designated as promissory note B, which is included in the Trust, which is subordinate in right of payment to the Bridgewater Place Mortgage Loan to the extent set forth in the Bridgewater Place Intercreditor Agreement, and which is evidenced by a separate Class of Certificates, the Class BWP Certificates.

 

BWP Trust Subordinate Companion Loan REMIC”: One of three separate REMICs comprising a portion of the Trust Fund, the assets of which consist of the BWP Trust Subordinate Companion Loan and the proceeds thereof, any allocable portion of REO Property with respect thereto, the related portions of the REO Account, and the BWP REMIC Distribution Account.

 

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 2015-C31, as executed and delivered by the Certificate Registrar and authenticated and delivered hereunder by the Authenticating Agent.

 

Certificate Account”: A segregated custodial account or accounts created and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of the Trustee for the Certificateholders, which shall be entitled “Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, on behalf of Wells Fargo Bank, National Association, as Trustee, for the benefit of the registered holders of JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass-Through Certificates, Series 2015-C31, Certificate

 

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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 Certificate 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 Fund or any Trust REMIC formed hereunder.

 

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 will 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 0.00440% per annum and the Stated Principal Balance of the related Mortgage Loan (including any Non-Serviced Mortgage Loan) (calculated in the same manner as interest is calculated on the related Mortgage Loan), REO Loan (other than the portion of an REO Loan related to any Companion Loan) or BWP Trust Subordinate Companion Loan (calculated in the same manner as interest is calculated on the related BWP Trust Subordinate 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.

 

Certificate Balance”: With respect to any Class of Principal Balance Certificates or Class BWP Certificates, as applicable, (i) on or prior to the first Distribution Date, an amount equal to the Original Certificate Balance of such Class 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 Class BWP Certificates, as applicable, on the Distribution Date immediately prior to such date of determination (determined as adjusted pursuant to Section 1.02(iii). The initial Certificate Balance of a Class of Exchangeable Certificates represents the principal balance of such Class without giving effect to any exchange and conversion for Class EC Certificates. The initial Certificate Balance of the Class EC Certificates is equal to the aggregate of the initial Certificate Balances of the Exchangeable Certificates and represents the maximum principal balance of such Class that could be issued in an exchange and conversion. In the event that no Exchangeable Certificates are converted to Class EC Certificates, the Class EC Certificate Balance would be equal to zero. For purposes of distributions to the Certificates pursuant to this Agreement, other than for federal income tax purposes, any exchange of (i) a portion of the Exchangeable Certificates will result in a

 

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conversion and reduction, on a dollar-for-dollar basis, of a proportionate share of each related component Class of the Exchangeable Certificates, and a conversion and increase, on a dollar-for-dollar basis, of the Certificate Balance of the Class EC Certificates, and (ii) any amount of the Class EC Certificates will result in a conversion and reduction, on a dollar-for-dollar basis, of the Certificate Balance of the Class EC Certificates converted, and a conversion and increase, on a dollar-for-dollar basis, of a proportionate share of the related Certificate Balances of each Class of Certificates that are components of the Exchangeable Certificates.

 

Certificate Deferred Interest”: For any Distribution Date, with respect to any Class of Principal Balance Certificates, an amount equal to the Mortgage Deferred Interest allocated to such Class of Principal Balance Certificates, pursuant to Section 4.06(a). With respect to each Class of Exchangeable Certificates and the Class EC Certificates, for purposes of determining allocations under Section 4.06(a) of this Agreement as between the Exchangeable Certificates and the Class EC Certificates, all amounts of Certificate Deferred Interest of each Class of Exchangeable Certificates for any Distribution Date shall be determined without regard to any exchange and conversion of such Exchangeable Certificates for Class EC Certificates; provided, however, that all amounts of Certificate Deferred Interest that would otherwise be allocable to Exchangeable Certificates that have been exchanged and converted for Class EC Certificates shall be deemed allocable to such Class EC Certificates, without duplication.

 

Certificate Factor”: With respect to any Class of Certificates (other than the Class R and Class Z 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 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; 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 the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Depositor, any Mortgage Loan Seller, a manager of a Mortgaged Property, a Mortgagor or any Affiliate of any of such Persons shall be deemed not to be outstanding, and the Voting Rights to which it is entitled shall not be taken into account in determining whether the requisite percentage of Voting Rights necessary to effect any such consent, approval, waiver or take any such action has been obtained; provided, however, that the foregoing restrictions shall not apply in the case of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Depositor, any Mortgage Loan Seller or any Affiliate

 

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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; provided, further, however, that so long as there is no Servicer Termination Event with respect to the Master Servicer or the Special Servicer, the Master Servicer and the Special Servicer or such Affiliate of either shall be entitled to exercise such Voting Rights with respect to any issue which could reasonably be believed to adversely affect such party’s compensation or increase its obligations or liabilities hereunder; and provided, further, however, that such restrictions shall not apply to the exercise of the Special Servicer’s, the Master Servicer’s or any Mortgage Loan Seller’s rights, if any, or any of their Affiliates as a member of the Controlling Class or as a Subordinate Loan-Specific Directing Certificateholder. The Trustee and the Certificate Administrator shall each be entitled to request and rely upon a certificate of the Master Servicer, the Special Servicer or the Depositor in determining whether a Certificate is registered in the name of an Affiliate of such Person. All references herein to “Holders” or “Certificateholders” shall reflect the rights of Certificate Owners as they may indirectly exercise such rights through the Depository and the Depository Participants, except as otherwise specified herein; provided, however, that the parties hereto shall be required to recognize as a “Holder” or “Certificateholder” only the Person in whose name a Certificate is registered in the Certificate Register.

 

Certificateholder Quorum”: In connection with any solicitation of votes in connection with the replacement of the Special Servicer pursuant to Section 7.01(d) hereof, the Holders of Certificates evidencing at least 75% of the aggregate Voting Rights (taking into account the application of Collateral Support Deficits and the application of any Appraisal Reductions to notionally reduce the Certificate Balance of the Certificates) of all Principal Balance Certificates and the Class EC Certificates on an aggregate basis.

 

Certification Parties”: As defined in Section 11.06. “Certification Party” shall mean any one of the Certification Parties.

 

Certifying Person”: As defined in Section 11.06.

 

Certifying Servicer”: As defined in Section 11.09.

 

Civic Opera Building Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of August 28, 2015, by and between the holder of the Civic Opera Building Pari Passu Companion Loan and the holder of the Civic Opera Building Mortgage Loan, relating to the relative rights of such holders of the Civic Opera Building Whole Loan, as the same may be further amended in accordance with the terms thereof.

 

Civic Opera Building Mortgage Loan”: With respect to the Civic Opera Building Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 1 on the Mortgage Loan Schedule), which is designated as promissory note A-1, and is pari passu in right of payment with the Civic Opera Building Pari Passu Companion Loan to the extent set forth in the Civic Opera Building Intercreditor Agreement.

 

Civic Opera Building Mortgaged Property”: The Mortgaged Property which secures the Civic Opera Building Whole Loan.

 

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

 

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

 

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

 

Class A Certificate”: Any Class A-1, Class A-2, Class A-3, 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 a fixed rate of 1.6658%.

 

Class A-2 Certificate”: A Certificate designated as “Class A-2” on the face thereof, in the form of Exhibit A-2 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 a fixed rate of 3.0079%.

 

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

 

Class A-3 Pass Through Rate”: With respect to any Distribution Date, a per annum rate equal to a fixed rate of 3.8014%.

 

Class A-S Certificate”: A Certificate designated as “Class A-S” on the face thereof, in the form of Exhibit A-9 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 a fixed rate of 4.1058%.

 

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Class A-SB Certificate”: A Certificate designated as “Class A-SB” on the face thereof, in the form of Exhibit A-4 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 a fixed rate of 3.5395%.

 

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-10 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 Weighted Average Net Mortgage Rate for such Distribution Date.

 

Class BWP Accrued Certificate Interest”: With respect to each Distribution Date and the Class BWP Certificates, an amount equal to interest for the related Interest Accrual Period at the Class BWP Pass-Through Rate for such Distribution Date, accrued on the Certificate Balance outstanding immediately prior to such Distribution Date (provided that for interest accrual purposes any distributions in reduction of the Certificate Balance or reductions in the Certificate Balance as a result of allocations of Class BWP Collateral Support Deficit on the Distribution Date occurring in an Interest Accrual Period shall be deemed to have been made on the first day of such Interest Accrual Period). Class BWP Accrued Certificate Interest shall be calculated on the basis of the actual number of days in a month, assuming that each year has three hundred-sixty (360) days.

 

Class BWP Accrued Interest From Recoveries”: With respect to each Distribution Date and the Class BWP Certificates if such Certificates had an increase in Certificate Balance as a result of the Trust Fund’s recovery of Nonrecoverable Advances that were previously reimbursed to the Master Servicer or Trustee, as applicable, from principal collections allocable to the related BWP Trust Subordinate Companion Loan, is an amount equal to interest at the Class BWP Pass-Through Rate of the Class BWP Certificates for the applicable Interest Accrual Periods on the amount of such increase in its Certificate Balance accrued from the Distribution Date on which the related Class BWP Collateral Support Deficit was allocated to the Class BWP Certificates as a result of the reimbursement of Nonrecoverable Advances from the Trust to, but not including, the Distribution Date on which the Certificate Balance was so increased.

 

Class BWP Available Distribution Amount”: With respect to the Class BWP Certificates, the BWP Trust Subordinate Companion Loan and any Distribution Date, the aggregate amount to the extent on deposit in the Certificate Account on such Distribution Date, of all cash received on or in respect of the BWP Trust Subordinate Companion Loan (including Liquidation Proceeds and any Purchase Price proceeds received as a result of a purchase of the related BWP Trust Subordinate Companion Loan pursuant to Section 3.18 ) and that was paid to

 

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the Trust as the holder of the related BWP Trust Subordinate Companion Loan in accordance with the terms of the related Intercreditor Agreement and this Agreement or otherwise, in each case, as of the related Master Servicer Remittance Date, exclusive of (without duplication):

 

(a)          all Monthly Payments paid by the Mortgagors on the BWP Trust Subordinate Companion Loan collected but due on a Due Date subsequent to the related Due Period, excluding interest relating to periods prior to, but due after, the Cut-off Date;

 

(b)          all unscheduled Principal Prepayments (together with any related payments of interest allocable to the period following the related Due Date for the BWP Trust Subordinate Companion Loan), Liquidation Proceeds, Insurance and Condemnation Proceeds and other unscheduled recoveries received with respect to the Trust AB Whole Loan allocable to the BWP Trust Subordinate Companion Loan in accordance with the terms of the related Intercreditor Agreement subsequent to the related Determination Date;

 

(c)          all amounts in the Certificate Account that are due or reimbursable to any person other than the Holders of the Class BWP Certificates;

 

(d)          all Yield Maintenance Charges in respect of the BWP Trust Subordinate Companion Loan;

 

(e)          all amounts deposited in the Certificate Account and, without duplication, the BWP REMIC Distribution Account in respect of the BWP Trust Subordinate Companion Loan in error; and

 

(f)          any Penalty Charges allocable to the BWP Trust Subordinate Companion Loan.

 

Class BWP Certificate”: A Certificate designated as “Class BWP” on the face thereof, in the form of Exhibit A-19 hereto, and evidencing a “regular interest” in the BWP Trust Subordinate Companion Loan REMIC for purposes of the REMIC provisions, which relates solely to the BWP Trust Subordinate Companion Loan.

 

Class BWP Certificate Deferred Interest”: With respect to each Distribution Date, the amount of Mortgage Deferred Interest for the Trust AB Whole Loan that is allocated in respect of the BWP Trust Subordinate Companion Loan.

 

Class BWP Class Unpaid Interest Shortfall”: As to any Distribution Date and the Class BWP Certificates, the excess, if any, of (a) the sum of (i) the Class BWP Distributable Certificate Interest for the immediately preceding Distribution Date and (ii) any outstanding Class BWP Class Unpaid Interest Shortfall on such preceding Distribution Date over (b) the aggregate amount in respect of interest actually distributed to the Class BWP Certificates on such immediately preceding Distribution Date. The Class BWP Class Unpaid Interest Shortfall as of the initial Distribution Date is zero. No interest shall accrue on Class BWP Class Unpaid Interest Shortfalls for such Distribution Date.

 

Class BWP Collateral Support Deficit”: As defined in Section 4.04(a).

 

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Class BWP Distributable Certificate Interest”: With respect to any Distribution Date and the Class BWP Certificates, the Class BWP Accrued Certificate Interest for such Distribution Date, reduced (to not less than zero) by (i) any Prepayment Interest Shortfalls resulting from any principal prepayments made on the BWP Trust Subordinate Companion Loan during the related Due Period that are not covered by the Master Servicer’s Compensating Interest Payment in respect of such BWP Trust Subordinate Companion Loan for the related Distribution Date and (ii) and any Class BWP Certificate Deferred Interest for such Distribution Date.

 

Class BWP Interest Distribution Amount”: With respect to the Class BWP Certificates for any Distribution Date, an amount equal to the sum of (a) the Class BWP Distributable Certificate Interest, (b) the Class BWP Class Unpaid Interest Shortfall with respect to such Class of Certificates for such Distribution Date and (c) any Class BWP Accrued Interest From Recoveries to the extent not previously paid for all prior Distribution Dates.

 

Class BWP Directing Certificateholder”: The Certificateholder(s) holding more than fifty percent (50%) of the Certificate Balance of the Class BWP Certificates. The name and contact information for the initial Class BWP Directing Certificateholder is set forth on Exhibit S hereto.

 

Class BWP Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to a fixed rate of 10.9780%.

 

Class BWP Principal Distribution Amount”: With respect to the Class BWP Certificates and any Distribution Date, an amount equal to the sum of (a) the Class BWP Principal Shortfall for such Distribution Date and (b) the amount of principal distributable on such Distribution Date in respect of the BWP Trust Subordinate Companion Loan (i) in accordance with the related Intercreditor Agreement, or (ii) as a result of the sale of the BWP Trust Subordinate Companion Loan in accordance with the terms hereof.

 

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

 

Class BWP-R Interest”: The uncertificated residual interest in the BWP Trust Subordinate Companion Loan REMIC, represented by the Class R Certificates.

 

Class C Certificate”: A Certificate designated as “Class C” on the face thereof, in the form of Exhibit A-11 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.

 

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

 

Class D Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date minus 0.500000%.

 

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

 

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

 

Class EC Certificate”: Any one of the Certificates with a “Class EC” 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-15 to this Agreement. For federal income tax purposes, the Class EC Certificates represent undivided beneficial interests in the related portion of the Grantor Trust in respect of the Exchangeable Certificates that have been exchanged and converted for Class EC Certificates. Upon any such exchange and conversion, the Exchangeable Certificates so exchanged and converted shall cease to be outstanding, but the regular interests in the Upper-Tier REMIC represented by such Exchangeable Certificates shall continue to be outstanding in uncertificated form in the Grantor Trust and shall henceforth be represented by the Class EC Certificates.

 

Class EC 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, for the benefit of Wells Fargo Bank, National Association, as Trustee, for the benefit of the holders of JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass-Through Certificates, Class EC Distribution Account,” and which must be an Eligible Account or a subaccount of an Eligible Account. The Class EC 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 Certificate”: A Certificate designated as “Class F” on the face thereof, in the form of Exhibit A-14 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

Class F 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 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.

 

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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 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 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.

 

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

 

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

 

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

 

Class Unpaid Interest Shortfall”: As to any Distribution Date and any Class of Regular Certificates, the excess, if any, of (a) the sum of (i) the Distributable Certificate Interest in respect of such Class of Certificates for the immediately preceding Distribution Date and (ii) any outstanding Class Unpaid Interest Shortfall payable to such Class of Certificates on such preceding Distribution Date over (b) the aggregate amount in respect of interest actually distributed to such Class of Certificates on such immediately preceding Distribution Date. The Class Unpaid Interest Shortfall with respect to any Class of Certificates as of the initial Distribution Date is zero. No interest shall accrue on Class Unpaid Interest Shortfalls. With respect to each Class of Exchangeable Certificates and the Class EC Certificates, for purposes of determining allocations and distributions under Section 4.01(a) of this Agreement as between the Exchangeable Certificates and the Class EC Certificates, all amounts of Class Unpaid Interest Shortfalls of each Class of Exchangeable Certificates for any Distribution Date shall be determined without regard to any exchange and conversion of such Exchangeable Certificates for Class EC Certificates; provided, however, that all amounts of Class Unpaid Interest Shortfalls that are allocable to Exchangeable Certificates that have been exchanged and converted for Class EC Certificates shall be deemed allocable to such Class EC Certificates, without duplication.

 

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 Certificates, Class X-B Certificates, Class X-C Certificates and Class X-D Certificates or any of the Class X-A Certificates, Class X-B Certificates, Class X-C Certificates or 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-5 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC provisions.

 

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Class X-A Notional Amount”: As of any date of determination, the aggregate of the Certificate Balances of the Class A Certificates (determined without giving effect to any exchange and conversion of any Class A-S Certificates for Class EC 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 Certificates for such Distribution Date, weighted on the basis of their respective Certificate Balances (calculated without giving effect to any exchange and conversion of any Class A-S Certificates for Class EC Certificates) 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-6 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 Certificate Balance of the Class B Certificates (determined without giving effect to any exchange and conversion of any Class B Certificates for Class EC Certificates).

 

Class X-B Pass-Through Rate”: The Pass-Through Rate for the Class X-B Certificates for any Distribution Date shall equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the Pass-Through Rate on the Class B Certificates for such Distribution Date. The Pass-Through Rate applicable to the Class X-B Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto. For purposes of the REMIC Provisions, the Class X-B Certificates shall not have a Pass-Through Rate and shall not be entitled to interest.

 

Class X-C Certificate”: A Certificate designated as “Class X-C” on the face thereof, in the form of Exhibit A-7 hereto, and evidencing a “regular interest” in the Lower-Tier REMIC for purposes of the REMIC provisions.

 

Class X-C Notional Amount”: As of any date of determination, the Certificate Balance of the Class C Certificates (determined without giving effect to any exchange and conversion of any Class C Certificates for Class EC Certificates).

 

Class X-C Pass-Through Rate”: The Pass-Through Rate for the Class X-C Certificates for any Distribution Date shall equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the Pass-Through Rate on the Class C Certificates for such Distribution Date. The Pass-Through Rate applicable to the Class X-C Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto. For purposes of the REMIC Provisions, the Class X-C Certificates shall not have a Pass-Through Rate and shall not be entitled to interest.

 

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

 

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

 

Class Z Certificate”: Each of the Certificates executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-18 and designated as a Class Z Certificate, and evidencing an undivided beneficial interest in the portion of the Grantor Trust that is described in Section 2.05.

 

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”: August 28, 2015.

 

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 Support Deficit”: As defined in Section 4.04(a).

 

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 “Midland Loan Services, a Division of PNC Bank, National Association, as Companion Paying Agent for the benefit of the Companion Holders of the Companion Loans, relating to the JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass-Through Certificates, Series 2015-C31.” The Companion Distribution Account shall not be an asset of the Trust Fund, any Trust REMIC or the Grantor Trust, but instead shall be held by the Companion Paying Agent on behalf of the Companion Holders. Any such account shall be an Eligible Account. Notwithstanding the foregoing, if the Master Servicer and the Companion Paying Agent are the same entity, the Companion Distribution Account may be the subaccount referenced in the second paragraph of Section 3.04(b).

 

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

 

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

 

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Companion Paying Agent”: With respect to the Serviced Companion Loans, if any, the Master Servicer in its role as Companion Paying Agent appointed pursuant to Section 3.32.

 

Companion Register”: The register maintained by the Companion Paying Agent pursuant to Section 3.33.

 

Compensating Interest Payments”: With respect to (1) each Mortgage Loan (other than the Non-Serviced Mortgage Loan) and any related Serviced Pari Passu Companion Loan, an amount as of any Distribution Date equal to the lesser of (i) the aggregate amount of Prepayment Interest Shortfalls incurred in connection with voluntary principal prepayments received in respect of the Mortgage Loans and any related Serviced Pari Passu Companion Loan (in each case other than a Specially Serviced Mortgage Loan or a Mortgage Loan, or any related Serviced Pari Passu Companion Loan on which the Special Servicer allowed a prepayment on a date other than the applicable Due Date) for the related Distribution Date and (ii) the aggregate of (A) that portion of the Master Servicer’s Servicing Fees for such Distribution Date that is, in the case of each Mortgage Loan, Serviced Pari Passu Companion Loan and REO Loan for which such Servicing Fees are being paid for such Due Period, calculated at a rate of 0.0025% per annum, (B) all Prepayment Interest Excesses received by the Master Servicer during such Due Period with respect to the Mortgage Loans (and, so long as a Serviced Whole Loan is serviced hereunder, any related Serviced Pari Passu Companion Loan(s)) subject to such prepayment and (C) to the extent earned on principal prepayments, net investment earnings payable to the Master Servicer for such Due Period received by the Master Servicer during such Due Period with respect to the Mortgage Loan or any related Serviced Pari Passu Companion Loan, as applicable, subject to such prepayment and (2) the BWP Trust Subordinate Companion Loan, an amount equal to the lesser of: (i) the amount of Prepayment Interest Shortfall incurred in connection with voluntary principal prepayments received in respect of such BWP Trust Subordinate Companion Loan (so long as (x) it is not a Specially Serviced Mortgage Loan, or (y) the Special Servicer did not allow a prepayment on a date other than the applicable Due Date) for the related Distribution Date, and (ii) the Servicing Fee for such BWP Trust Subordinate Companion Loan for the related Distribution Date (calculated at 0.0025% per annum). 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 the Master Servicer’s allowing the related Mortgagor to deviate (a “Prohibited Prepayment”) from the terms of the related Mortgage Loan documents regarding Principal Prepayments (other than (V) the Non-Serviced Mortgage Loan, (W) subsequent to a default under the related Mortgage Loan documents or if the Mortgage Loan is a Specially Serviced Mortgage Loan, (X) pursuant to applicable law or a court order or otherwise in such circumstances where the Master Servicer is required to accept such Principal Prepayment in accordance with the Servicing Standard, (Y) at the request or with the consent of the Special Servicer or, so long as a Control Event has not occurred and is not continuing and with respect to the Mortgage Loans other than any Excluded Loan, 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, the Master Servicer shall pay, without regard to clause (1)(ii) above, the aggregate amount of Prepayment Interest Shortfalls with respect to such Mortgage Loan, otherwise described in clause (1)(i) above in connection with such Prohibited Prepayments.

 

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

 

Consultation Termination Event”: At any date at which (i) no Class of Control Eligible Certificates exists where such Class’s aggregate Certificate Balance is at least equal to 25% of the Original Certificate Balance of that Class, in each case without regard to the application of any Appraisal Reductions or (ii) a Holder of the Class E Certificates is the majority Controlling Class Certificateholder and has irrevocably waived its right, in writing, to exercise any of the rights of the Controlling Class Certificateholder, and such rights have not been reinstated to a successor Controlling Class Certificateholder pursuant to Section 3.28(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 Class E Certificates that has not irrevocably waived its right to exercise any of the rights of the Controlling Class Certificateholder.

 

Control Eligible Certificates”: Any of the Class E, Class F and Class NR Certificates.

 

Control Event”: The occurrence of (i) the Certificate Balance of the Class E Certificates (taking into account the application of any Appraisal Reductions to notionally reduce the Certificate Balance of such Class in accordance with Section 4.05(a) hereof) being reduced to less than 25% of the Original Certificate Balance of such Class or (ii) a Holder of the Class E Certificates becoming the majority Controlling Class Certificateholder and has irrevocably waived its right, in writing, to exercise any of the rights of the Controlling Class Certificateholder and such rights have not been reinstated to a successor Controlling Class Certificateholder pursuant to Section 3.28(l).

 

Controlling Class”: As of any date of determination, the most subordinate Class of Control Eligible Certificates then outstanding that has a then aggregate Certificate Balance as notionally reduced by any Appraisal Reductions allocable to such Class in accordance with Section 4.05(a), at least equal to 25% of the Original Certificate Balance of that Class. The Controlling Class as of the Closing Date will be the Class NR 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 Trustee, the Master Servicer, the Special Servicer or the Senior Trust 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 Trustee, Master Servicer, Senior Trust Advisor or Special Servicer, as applicable. The Trustee, Master Servicer, the Special Servicer and the Senior Trust Advisor shall be entitled to rely on any such list so provided.

 

Corporate Trust Office”: The office of the Trustee or the Certificate Administrator, at which at any particular time its corporate trust business shall be principally

 

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administered. At the date of this Agreement, the corporate trust office of the Trustee and Certificate Administrator is located at 9062 Old Annapolis Road, Columbia, Maryland 21045, Attention: Corporate Trust Services – JPMBB 2015-C31, provided that, for certificate transfer purposes, it is located at Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479-0113, Attention: JPMBB 2015-C31.

 

Corrected Mortgage Loan”: Any Specially Serviced Mortgage Loan that has become current and remained current for three (3) consecutive Monthly Payments (for such purposes taking into account any modification or amendment of the related Mortgage Loan, Companion Loan or BWP Trust Subordinate 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 additional default is foreseeable in the reasonable judgment of the Special Servicer and no other event or circumstance exists that causes such Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, to otherwise constitute a Specially Serviced Mortgage Loan) the servicing of which the Special Servicer has returned to the Master Servicer pursuant to Section 3.21(a).

 

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

 

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

 

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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 and Corrected Mortgage Loan Report”: The monthly report in the “Historical Loan Modification and Corrected Mortgage Loan Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or 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, REO Loan (other than the portion of an REO Loan related to any Companion Loan) and the BWP Trust Subordinate Companion Loan and for any Distribution Date, an 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, REO Loan or BWP Trust Subordinate Companion Loan as of the close of business on the Distribution Date in such Interest Accrual Period; provided that such amounts shall be computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the related Mortgage Loan, REO Loan or BWP Trust Subordinate Companion Loan is computed and shall be prorated for partial periods. For the avoidance of doubt, the CREFC® Intellectual Property Royalty License Fee shall be deemed payable by the Master Servicer from the BWP Trust Subordinate Companion Loan REMIC, the Lower-Tier REMIC or Grantor Trust, as applicable.

 

CREFC® Intellectual Property Royalty License Fee Rate”: With respect to each Mortgage Loan and BWP Trust Subordinate Companion Loan, a rate equal to 0.00050% per annum.

 

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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 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 or BWP Trust Subordinate 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 Master Servicer or the Special Servicer of any such report that is required to state information for any period prior to the Cut-off Date, the Master Servicer or the Special Servicer, as the case may be, may conclusively rely (without independent verification), absent manifest error, on information provided to it by the Mortgage Loan Sellers or by the related Mortgagor or (x) in the case of such a report produced by the Master Servicer, by the Special Servicer (if other than the Master Servicer or an Affiliate thereof) and (y) in the case of such a report produced by the Special Servicer, by the Master Servicer (if other than the Special Servicer or an Affiliate thereof).

 

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

 

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

 

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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 and the BWP Trust Subordinate Companion Loan, 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 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

 

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

 

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

 

Cross-Over Date”: The Distribution Date on which the Certificate Balances of the Subordinate Certificates (calculated without giving effect to any exchange of Exchangeable Certificates for Class EC Certificates) have all been reduced to zero as a result of the allocation of Collateral Support Deficits to those Certificates.

 

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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 are no Crossed Mortgage Loan Groups as of the Closing Date.

 

Crossed Underlying Loan”: With respect to any Crossed Mortgage Loan Group, (i) a Mortgage Loan that is cross-collateralized and cross-defaulted with one or more other Mortgage Loans within such Crossed Mortgage Loan Group or (ii) a Mortgage Loan that is cross-collateralized and cross-defaulted with one or more other Mortgage Loans within such Crossed Mortgage Loan Group.

 

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 Defect or a Breach (the Crossed Underlying Loan(s) in such Crossed Mortgage Loan Group affected by such Defect or Breach, for purposes of this definition, the “affected Crossed Underlying Loans” and the other Crossed Underlying Loan(s) in such Crossed Mortgage Loan Group, for purposes of this definition, the “remaining Crossed Underlying Loans”) (i) the weighted average Debt Service Coverage Ratio for all the remaining Crossed Underlying Loans for the four most recently reported calendar quarters preceding the repurchase or substitution shall not be less than the greater of (a) the weighted average Debt Service Coverage Ratio for the entire such Crossed Mortgage Loan Group, including the affected Crossed Underlying Loan(s), for the four most recently reported calendar quarters preceding the repurchase or substitution, and (b) 1.25x, (ii) the weighted average LTV Ratio for all the remaining Crossed Underlying Loans determined at the time of repurchase or substitution based upon an Appraisal obtained by the Special Servicer at the expense of the related Mortgage Loan Seller shall not be greater than the least of (a) the weighted average LTV Ratio for the entire such Crossed Mortgage Loan Group, including the affected Crossed Underlying Loan(s), determined at the time of repurchase or substitution based upon an Appraisal obtained by the Special Servicer at the expense of the related Mortgage Loan Seller, (b) the weighted average LTV Ratio for the entire such Crossed Mortgage Loan Group, including the affected Crossed Underlying Loan(s), as of the Cut-off Date and (c) 75%, (iii) the related Mortgage Loan Seller, at its expense, shall have furnished the Trustee and the Certificate Administrator with an Opinion of Counsel that any modification relating to the repurchase or substitution of a Crossed Underlying Loan shall not cause an Adverse REMIC Event, (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 Fund (while the Trust forbears from exercising enforcement rights against the Primary Collateral for the Mortgage Loan removed from the Trust Fund) and (v) (other than with respect to any Excluded Loan) unless a Control 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.

  

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

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Custodian”: A Person who is at any time appointed by the Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files, which Person shall not be the Depositor, either of the Mortgage Loan Sellers or an Affiliate of any of them. The Certificate Administrator shall be the initial Custodian.

 

Cut-off Date”: With respect to each Mortgage Loan and BWP Trust Subordinate Companion Loan, as applicable, the related Due Date of such Mortgage Loan and BWP Trust Subordinate Companion Loan, as applicable in August 2015, or with respect to any Mortgage Loan that has its first Due Date in September 2015, the date that would have otherwise been the related Due Date in August 2015.

 

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

 

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

 

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

 

Default Interest”: With respect to any Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan, all interest accrued in respect of such Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan during such Due 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, Companion Loan or BWP Trust Subordinate Companion Loan outstanding from time to time.

 

Defaulted Mortgage Loan”: A Mortgage Loan (i) that is delinquent at least sixty (60) days in respect of its Monthly Payments or more than thirty (30) days (or sixty (60) days with respect to the circumstances described in clause (ii) of the definition of Servicing Transfer Event) delinquent in respect of its Balloon Payment, if any, in either case such delinquency to be

 

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determined without giving effect to any grace period permitted by the related Mortgage or Mortgage Note and without regard to any acceleration of payments under the related Mortgage and Mortgage Note or (ii) as to which the Master Servicer or Special Servicer has, by written notice to the related Mortgagor, accelerated the maturity of the indebtedness evidenced by the related Mortgage Note. For the avoidance of doubt, a defaulted Companion Loan does not constitute a “Defaulted Mortgage Loan”.

 

Defeasance Accounts”: As defined in Section 3.20(k).

 

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

 

Deficient Exchange Act Deliverable”: With respect to the Master Servicer, the Special Servicer, the Senior Trust Advisor, the Custodian, the Certificate Administrator, the Trustee and each Servicing Function Participant and Additional Servicer retained by it, 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, Serviced Whole Loan or Trust AB Whole Loan (or BWP Trust Subordinate Companion Loan), as applicable, a valuation by a court of competent jurisdiction of the Mortgaged Property in an amount less than the then outstanding principal balance of such Mortgage Loan, Serviced Whole Loan or Trust AB Whole Loan (or BWP Trust Subordinate Companion Loan) which valuation results from a proceeding initiated under the Bankruptcy Code.

 

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

 

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”: J.P. Morgan Chase Commercial Mortgage Securities Corp., a Delaware 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.

 

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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.

 

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 Business Day immediately succeeding such eleventh (11th) calendar day).

 

Directing Certificateholder”: The initial Directing Certificateholder shall be KKR Real Estate Finance Holdings L.P. Thereafter, 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 time to time); provided, however, that (i) absent that selection, or (ii) until a Directing Certificateholder is so selected or (iii) upon receipt of a notice from a majority of the Controlling Class Certificateholders, by Certificate Balance, that a Directing Certificateholder is no longer designated, the Controlling Class Certificateholder that owns the largest aggregate Certificate Balance of the Controlling Class (or a representative thereof) will, subject to the terms of Section 3.28(b) hereof, 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 Event, the Directing Certificateholder 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. 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 or to exercise any of the rights of the Controlling Class Certificateholder, there will be no Directing Certificateholder and no party will be entitled to exercise any of the rights of the Directing Certificateholder until such time as a Controlling Class Certificateholder is reinstated pursuant to Section 3.28(l) hereof and a new 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, 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 Fund or on behalf of a Companion Holder or the performance of any construction work on the REO Property (other than the completion of a building or improvement, where more than 10% of

 

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the construction of such building or improvement was completed before default became imminent), other than through an Independent Contractor; provided, however, that an REO Property shall not be considered to be Directly Operated solely because the Trustee (or the Special Servicer on behalf of the Trustee) establishes rental terms, chooses tenants, enters into or renews leases, deals with taxes and insurance or makes decisions as to repairs or capital expenditures with respect to such REO Property or takes other actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).

 

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

 

Disclosure Parties”: As defined in Section 3.15(f).

 

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 (other than certain farmers’ cooperatives described in Section 521 of the Code) 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 any Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding or any Person having an Ownership Interest in any Class of Certificates (other than such Person) to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the Transfer of an Ownership Interest in a Class R Certificate to such Person. The terms “United States,” “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.

 

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Distributable Certificate Interest”: With respect to any Distribution Date, as to any Class of Regular Certificates, the Accrued Certificate Interest in respect of such Class of Regular Certificates for such Distribution Date, reduced (to not less than zero) by (i) any allocations to such Class of Regular Certificates (other than the Class X Certificates) of the product of (a) any Net Aggregate Prepayment Interest Shortfall for such Distribution Date, multiplied by (b) a fraction, expressed as a decimal, the numerator of which is the Interest Distribution Amount (without regard to the allocation of Prepayment Interest Shortfalls for such Distribution Date) in respect of such Class of Certificates for such Distribution Date, and the denominator of which is the aggregate Interest Distribution Amount (without regard to the allocation of Prepayment Interest Shortfalls for such Distribution Date) in respect of all the Classes of Regular Certificates (other than the Class X Certificates) for such Distribution Date and (ii) any Certificate Deferred Interest for such Distribution Date allocated to such Class of Regular Certificates pursuant to Section 4.06(a). With respect to each Class of Exchangeable Certificates and the Class EC Certificates, for purposes of determining allocations and distributions under Section 4.01(a) of this Agreement as between the Exchangeable Certificates and the Class EC Certificates, all amounts of Distributable Certificate Interest of each Class of Exchangeable Certificates for any Distribution Date shall be determined without regard to any exchange and conversion of such Exchangeable Certificates for Class EC Certificates; provided, however, that all amounts of Distributable Certificate Interest that would otherwise be allocable to such converted Exchangeable Certificates shall be deemed allocable to such Class EC Certificates, without duplication.

 

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

 

Distribution Date”: The 4th Business Day following each Determination Date, beginning in September 2015. The initial Distribution Date shall be September 17, 2015.

 

Do Not Hire List”: The list, as may be updated at any time, provided by the Depositor to the Master Servicer, Special Servicer, the Certificate Administrator, Trustee or Senior Trust Advisor, 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, Companion Loan or BWP Trust Subordinate 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 Monthly Payment thereon is scheduled to be first due, (ii) any Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, after the Maturity Date therefor, the day of the month set forth in the related Mortgage Note on which each Monthly Payment on such Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, had been

 

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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 Monthly Payment on the related Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, had been scheduled to be first due.

 

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

 

EDGAR”: As defined in Section 11.03.

 

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

 

Election Notice”: As defined in Section 3.35(g).

 

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 unsecured debt obligations of which are rated at least “Aa3” 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 DBRS (if then rated by DBRS, or if not rated by DBRS, an equivalent rating (or higher) by at least two (2) NRSROs (which may include Moody’s and KBRA) or such other rating confirmed in a Rating Agency Confirmation), 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 “R-1 (middle)” from DBRS (if then rated by DBRS, or if not rated by DBRS, an equivalent rating (or higher) by at least two (2) NRSROs (which may include Moody’s and KBRA) or such other rating confirmed in a Rating Agency Confirmation), 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 (if the deposits are to be held in the account for more than thirty (30) days) and “A” from DBRS (if then rated by DBRS, or if not rated by DBRS, an equivalent rating (or higher) by at least two (2) NRSROs (which may include Moody’s and KBRA) or such other rating confirmed in a Rating Agency Confirmation) or Wells Fargo Bank, National Association’s short-term deposit or short-term unsecured debt rating shall

 

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be at least “P-1” from Moody’s (if the deposits are to be held in the account for thirty (30) days or less) and “R-1 (middle)” from DBRS (if then rated by DBRS, or if not rated by DBRS, an equivalent rating by at least two (2) NRSROs (which may include Moody’s and KBRA) or such other rating confirmed in a Rating Agency Confirmation); (iii) an account or accounts maintained with PNC Bank, National Association so long as PNC Bank, National Association’s long term unsecured debt or deposit account rating shall be at least “A2” from Moody’s (if the deposits are to be held in the account for more than thirty (30) days) and “A” from DBRS (if then rated by DBRS, or if not rated by DBRS, an equivalent rating (or higher) by at least two (2) NRSROs (which may include Moody’s and KBRA) or such other rating confirmed in a Rating Agency Confirmation) or PNC Bank, National Association’s short-term deposit account or short-term unsecured debt rating shall be at least “P-1” from Moody’s (if the deposits are to be held in the account for thirty (30) days or less) and “R-1 (middle)” from DBRS (if then rated by DBRS, or if not rated by DBRS, an equivalent rating by at least two (2) NRSROs (which may include Moody’s and KBRA) or such other rating confirmed in a Rating Agency Confirmation); or (iv) such other account or accounts that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i)(iii) above, with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency for which the minimum ratings set forth in the applicable clause is not satisfied with respect to such account, which account may be an account maintained by or with the Certificate Administrator, the Trustee, the Master Servicer or the Special Servicer; (v) any other account or accounts not listed in clauses (i)(iii) 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 3.30), which account may be an account maintained by or with the Certificate Administrator, the Trustee, the Master Servicer or the Special Servicer, or (vi) 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). Eligible Accounts may bear interest. No Eligible Account shall be evidenced by a certificate of deposit, passbook or other similar instrument.

 

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 or BWP Trust Subordinate Companion Loan, any agreement between the Mortgagor (or a guarantor thereof) and the originator of such Mortgage Loan or BWP Trust Subordinate Companion Loan relating to the Mortgagor’s obligation to remediate or monitor or indemnify for any environmental problems relating to the related Mortgaged Property.

 

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

 

ERISA Restricted Certificate”: Any Certificate (other than a Class R or Class Z Certificate) that does not meet the requirements of Prohibited Transaction Exemption 2013-08 (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 BWP, Class E, Class F and Class NR Certificates is an ERISA Restricted Certificate.

 

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

 

Euroclear”: The Euroclear System or any successor thereto.

 

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

 

Excess Interest Distribution Account”: The trust account or accounts created and maintained as a separate account or accounts (or as a subaccount of the Distribution Account) by the Certificate Administrator pursuant to Section 3.04(c), which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wells Fargo Bank, National Association, as Trustee, for the benefit of the registered holders of JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass-Through Certificates, Series 2015-C31, Class Z, Excess Interest Distribution Account”, and which must be an Eligible Account (or a subaccount of an Eligible Account). The Excess Interest Distribution Account shall be held solely for the benefit of the Holders of the Class Z Certificates. The Excess Interest Distribution Account shall not be an asset of any Trust REMIC, but rather shall be an asset of the Grantor Trust.

 

Excess Modification Fee Amount”: With respect to either the Master Servicer or the Special Servicer, any Corrected Mortgage Loan and any particular modification, waiver, extension or amendment with respect to such Corrected Mortgage 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 Companion Loan or BWP Trust Subordinate Companion Loan, if applicable, unless prohibited under the related Intercreditor Agreement) and received and retained by the Master Servicer or the Special Servicer, as applicable, as compensation within the prior twelve (12) months of such modification, waiver, extension or amendment, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee.

 

Excess Modification Fees”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Whole Loan or Trust AB Whole Loan, the sum of (A) the excess, if any, of (i) any and all Modification Fees with respect to a modification, waiver,

 

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extension or amendment of any of the terms of such Mortgage Loan, Serviced Whole Loan or Trust AB 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, Serviced Whole Loan or Trust AB Whole Loan, as applicable, and reimbursed from such Modification Fees and (B) expenses previously paid or reimbursed from Modification Fees as described in the preceding clause (A), which expenses have been recovered from the related Mortgagor or otherwise. With respect to each of the Master Servicer and the Special Servicer, the Excess Modification Fees collected and earned by such Person from the related Mortgagor (taken in the aggregate with any other Excess Modification Fees collected and earned by such Person from the related Mortgagor within the prior twelve (12) months of the collection of the current Excess Modification Fees) will be subject to a cap of 1.0% of the outstanding principal balance of the related Mortgage Loan, Serviced Whole Loan or Trust AB 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, Serviced Whole Loan or Trust AB Whole Loan, as applicable.

 

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

 

Exchange”: As defined in Section 3.35(g).

 

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

 

Exchange Date”: As defined in Section 5.09(b).

 

Exchange Proportion”: With respect to Exchangeable Certificates and the Class EC Certificates, the following percentages based on the initial Certificate Balances of the Classes (rather than the outstanding Certificate Balances):

 

Exchange Proportion

Class A-S:            28.96562835660580% Class EC               100.00000000000000%
Class B:               45.51718582169710%  
Class C:               25.51718582169710%  

 

Exchangeable Certificates”: The Class A-S, Class B and Class C Certificates.

 

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. Immediately upon obtaining actual knowledge of the Directing Certificateholder or any Controlling Class Certificateholder becoming an “Excluded Controlling Class Holder”, such

 

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Directing Certificateholder or Controlling Class Certificateholder, as applicable, shall provide notice in the form of Exhibit P-1E hereto to the Master Servicer, the Special Servicer, the Senior Trust Advisor, the Trustee and the Certificate Administrator, which such notice shall be physically delivered in accordance with Section 12.05 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 such notice shall provide each of the CTSLink User ID’s associated with such Excluded Controlling Class Holder, and which such notice shall direct the Certificate Administrator to restrict such Excluded Controlling Class Holder’s access to the Certificate Administrator’s Website as and to the extent provided in this Agreement.

 

Excluded Controlling Class Loan”: Any Mortgage Loan or Whole Loan with respect to which, as of any date of determination, the Directing Certificateholder or any Controlling Class Certificateholder is a Borrower Party. 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 and/or the related Mortgaged Properties, which may include the Asset Status Reports, Final Asset Status Reports (or summaries thereof), any Senior Trust Advisor reports to the Certificate Administrator regarding a Special Servicer’s net present value determination, any Appraisal Reduction calculations delivered pursuant to Section 3.31(d) and Section 3.31(e), and any Officer’s Certificates delivered by the Master Servicer or the 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 Special Servicer, the Master Servicer or the Senior Trust 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 Controlling Class Loan) shall not be considered “Excluded Information”. Each of the Master Servicer, the Special Servicer, or the Senior Trust Advisor shall deliver any Excluded Information to the Certificate Administrator in accordance with Section 3.37 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 3.37 hereof.

 

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

 

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

 

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

 

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

 

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Final Asset Status Report”: With respect to any Specially Serviced Mortgage Loan, each related Asset Status Report, together with such other data or supporting information provided by the Special Servicer to the Directing Certificateholder, holder of an AB Subordinate Companion Loan or Subordinate Loan-Specific Directing Certificateholder, as applicable, in each case, which does not include any communication (other than the related Asset Status Report) between the Special Servicer and the Directing Certificateholder, holder of an AB Subordinate Companion Loan or Subordinate Loan-Specific Directing Certificateholder, as applicable, with respect to such Specially Serviced Mortgage Loan; provided that, with respect to any Mortgage Loan other than an Excluded Loan, prior to a Control Event or an AB Control Appraisal Period, as applicable, no Asset Status Report shall be considered to be a Final Asset Status Report unless the Directing Certificateholder, holder of an AB Subordinate Companion Loan or Subordinate Loan-Specific Directing Certificateholder, as applicable, 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 3.21 in respect of such workout or liquidation, or has been deemed to have approved or consented to such action or the Asset Status Report is otherwise implemented by the Special Servicer in accordance with this Agreement.

 

Final Recovery Determination”: A reasonable determination by the Special Servicer, in consultation with the Directing Certificateholder if related to a Mortgage Loan other than any Excluded Loan and made prior to the occurrence of a Consultation Termination Event, with respect to any Defaulted Mortgage Loan (and, if applicable, any defaulted Companion Loan or defaulted BWP Trust Subordinate Companion Loan) or Corrected Mortgage Loan or REO Property (other than a Mortgage Loan, REO Property or BWP Trust Subordinate Companion Loan, as the case may be, that was purchased by (i) any of the Mortgage Loan Sellers pursuant to Section 6 of the applicable Mortgage Loan Purchase Agreement, (ii) the Special Servicer or other person pursuant to Section 3.18(b), any Companion Holder, any related Subordinate Loan-Specific Directing Certificateholder or any mezzanine lender pursuant to Section 3.18 or (iii) the Master Servicer, Special Servicer, the Holders of the Controlling Class, or the Holders of the Class R Certificates pursuant to Section 9.01) that there has been a recovery of all Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenue and other payments or recoveries that, in the Special Servicer’s judgment, which judgment was exercised without regard to any obligation of the Special Servicer to make payments from its own funds pursuant to Section 3.07(b), will ultimately be recoverable. With respect to all Mortgage Loans other than any Excluded Loan, prior to the occurrence and continuance of any Control Event, the Directing Certificateholder shall have ten (10) Business Days to review and approve each such recovery determination by the Special Servicer; provided, however, that if the Directing Certificateholder fails to approve or disapprove any recovery determination within ten (10) Business Days of receipt of the initial recovery determination, such consent shall be deemed given.

 

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

 

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

 

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) and, in the case of the Trust AB Whole Loan, the BWP Trust Subordinate Companion 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 (and, in the case of the Trust AB Whole Loan, the BWP Trust Subordinate Companion Loan) pursuant to the related Intercreditor Agreement) over (ii) the Purchase Price for such Mortgage Loan (and, in the case of the Trust AB Whole Loan, the BWP Trust Subordinate Companion Loan) on the date on which such Liquidation Proceeds were received.

 

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, for the benefit of Wells Fargo Bank, National Association, as Trustee, for the benefit of the registered holders of JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass-Through Certificates, Series 2015-C31, Gain-on-Sale Reserve Account.” Any such account shall be an Eligible Account or a subaccount of an Eligible Account.

 

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 (i) the uncertificated regular interests in the Upper-Tier REMIC represented by any Exchangeable Certificates that have been exchanged and converted to the Class EC Certificates and the Class EC Distribution Account, beneficial ownership of which is represented by the Class EC Certificates as further described in Section 5.09 and (ii) the Excess Interest and amounts held from time to time in the Excess Interest Distribution Account, beneficial ownership of which is represented by the Class Z Certificates, as further described in Section 2.05.

 

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

 

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

 

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

 

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used with respect to any specified Person, any such Person who (i) is in fact independent of the Trustee, the Certificate Administrator, the Depositor, the Master Servicer, the Special Servicer, the Directing Certificateholder, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Subordinate Loan-Specific Directing Certificateholder (insofar as the relevant matter involves the Trust AB Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Senior Trust Advisor and all Affiliates thereof, (ii) does not have any material direct financial interest in or any material indirect financial interest in any of the Trustee, the Certificate Administrator, the Depositor, the Master Servicer, the Special Servicer, the Directing Certificateholder, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Subordinate Loan-Specific Directing Certificateholders (insofar as the relevant matter involves the Trust AB Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Senior Trust Advisor or any Affiliate thereof and (iii) is not connected with the Trustee, the Certificate Administrator, the Depositor, the Master Servicer, the Special Servicer, the Directing Certificateholder, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Subordinate Loan-Specific Directing Certificateholders (insofar as the relevant matter involves the Trust AB Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Senior Trust Advisor or any Affiliate thereof as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions; provided, however, that a Person shall not fail to be Independent of the Trustee, the Certificate Administrator, the Depositor, the Master Servicer, the Special Servicer, the Directing Certificateholder, the Companion Holders, the Subordinate Loan-Specific Directing Certificateholder, the Senior Trust Advisor or any Affiliate thereof merely because such Person is the beneficial owner of 1% or less of any Class of securities issued by the Trustee, the Certificate Administrator, the Depositor, the Master Servicer, the Special Servicer, the Senior Trust Advisor, the Directing Certificateholder, the Companion Holders, the Subordinate Loan-Specific Directing Certificateholder or any Affiliate thereof, as the case may be, provided such ownership constitutes less than 1% of the total assets of such Person.

 

Independent Contractor”: Either (i) any Person that would be an “independent contractor” with respect to the Trust within the meaning of Section 856(d)(3) of the Code if the Trust were a real estate investment trust (except that the ownership test set forth in that Section shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of any Class of Certificates, or such other interest in any Class of Certificates as is set forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the Certificate Administrator, the Master Servicer, any Companion Holder, the Subordinate Loan-Specific Directing Certificateholders or the Trust, delivered to the Trustee, any Companion Holder, the Subordinate Loan-Specific Directing Certificateholder, the Certificate Administrator and the Master Servicer), so long as the Trust does not receive or derive any income from such Person and provided that the relationship between such Person and the Trust is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5) (except that the Master Servicer or the Special Servicer shall not be considered to be an Independent Contractor under the definition in this clause (i) unless an Opinion of Counsel has been delivered to the Trustee and the Certificate Administrator to that effect) or (ii) any other Person (including the Master Servicer and the Special Servicer) upon receipt by the Trustee, the Certificate Administrator, the Senior Trust

 

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Advisor and the Master Servicer of an Opinion of Counsel, which shall be at no expense to the Trustee, the Certificate Administrator, the Master Servicer, the Senior Trust Advisor or the Trust Fund, 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 Notice”: As defined in Section 3.28(b).

 

Initial Purchasers”: J.P. Morgan Securities LLC, Barclays Capital Inc. and Wells Fargo Securities, LLC.

 

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

 

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

 

Inquiry” and “Inquiries”: As each is defined in Section 4.08(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 accordance with the Servicing Standard (and (i) in the case of any Mortgage Loan with a related Companion Loan, to the extent any portion of such proceeds are received by the Master Servicer or Certificate Administrator in connection with such Mortgage Loan, pursuant to the allocations set forth in the related Intercreditor Agreement and (ii) in the case of the Trust AB Whole Loan, to the extent any portion of such proceeds are received by the Master Servicer or Certificate Administrator in connection with such Trust AB Whole Loan and are allocable to the related Mortgage Loan and BWP Trust Subordinate Companion Loan, as applicable, pursuant to the related Intercreditor Agreement) and the REMIC Provisions.

 

Insurance Policy”: With respect to any Mortgage Loan or BWP Trust Subordinate Companion 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, BWP Trust Subordinate Companion Loan or the related Mortgaged Property.

 

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Intercreditor Agreement”: Each of the Bridgewater Place Intercreditor Agreement, the Civic Opera Building Intercreditor Agreement, The Roosevelt New Orleans Waldorf Astoria Intercreditor Agreement, the Sunbelt Portfolio Intercreditor Agreement, the Brunswick Portfolio Intercreditor Agreement and any AB 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 Period”: With respect to any Class of Regular Certificates, the Class BWP Certificates or the Uncertificated Lower-Tier Interests and any Distribution Date, the period beginning on the first day of the calendar month preceding the calendar month in which the related Distribution Date occurs and ending on the last day of the calendar month preceding the calendar month in which such Distribution Date occurs, and (other than with respect to the Class BWP Certificates) calculated assuming that each month has thirty (30) days and each year has three hundred-sixty (360) days. Interest on the Class BWP Certificates shall be calculated on the basis of the actual number of days in a month, assuming that each year has three hundred-sixty (360) days.

 

Interest Distribution Amount”: With respect to any Class of Regular Certificates for any Distribution Date, an amount equal to the sum of (a) the Distributable Certificate Interest and the Class Unpaid Interest Shortfall with respect to such Class of Certificates for such Distribution Date, and (b) any Accrued Interest From Recoveries allocated to such Class of Certificates to the extent not previously paid for all prior Distribution Dates. With respect to each Class of Exchangeable Certificates and the Class EC Certificates, for purposes of determining allocations and distributions under Section 4.01(a) of this Agreement as between the Exchangeable Certificates and the Class EC Certificates, all Interest Distribution Amounts of each Class of Exchangeable Certificates for any Distribution Date shall be determined without regard to any exchange and conversion of such Exchangeable Certificates for Class EC Certificates; provided, however, that all Interest Distribution Amounts that would otherwise be allocable to Exchangeable Certificates that have been exchanged and converted to Class EC Certificates shall be deemed allocable to and shall be distributable to such Class EC Certificates, without duplication.

 

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, for the benefit of Wells Fargo Bank, National Association, as Trustee, for the benefit of the registered holders of JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass-Through Certificates, Series 2015-C31, Interest Reserve Account”, into which the amounts set forth in Section 3.25 shall be deposited directly and which must be an Eligible Account or subaccount of an Eligible Account.

 

Interest Reserve Loan”: Each Actual/360 Mortgage Loan (other than the BWP Trust Subordinate Companion Loan).

 

Interested Person”: As of the date of any determination, the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Senior Trust

 

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Advisor, any Independent Contractor engaged by the Special Servicer, each Companion Holder (but only with respect to the related Serviced Whole Loan), a Holder of Class BWP Certificates (but only with respect to the Trust AB Whole Loan), a holder of a related mezzanine loan (but only with respect to the related Mortgage Loan), any Mortgagor under the related Mortgage Loan documents or BWP Trust Subordinate Companion Loan documents, any related property manager or any known Affiliate of any such Person.

 

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.

 

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 Companion Holder or a prospective purchaser of a Certificate (or any investment advisor or manager or other representative of the foregoing), (ii) that either (a) such Person is not a Borrower Party, in which case such Person shall have access to all the reports and information made available to Certificateholders 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 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) except in the case of a Companion Holder or its representative, that such Person has received a copy of the final Prospectus Supplement and the Prospectus and (iv) such Person agrees to keep any information that such Person has had access to on the Certificate Administrator’s Website confidential and will not violate any securities laws.

 

Investor Q&A Forum”: As defined in Section 4.08(a).

 

Investor Registry”: As defined in Section 4.08(b).

 

JPMBB Commercial Mortgage Securities Trust 2015-C30 Pooling and Servicing Agreement”: The pooling and servicing agreement, dated as of July 1, 2015, among J.P. Morgan Chase Commercial Mortgage Securities Corp., as depositor, Wells Fargo Bank, National Association, as master servicer, Midland Loan Services, a Division of PNC Bank, National

 

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Association, as special servicer, Wells Fargo Bank, National Association, as certificate administrator, Wilmington Trust, National Association, as trustee, and Pentalpha Surveillance LLC, as senior trust advisor, as from time to time amended, supplemented or modified relating to the issuance of the JPMBB Commercial Mortgage Securities Trust 2015-C30, Commercial Mortgage Pass-Through Certificates, Series 2015-C30.

 

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, the Master Servicer, the Directing Certificateholder and the Special Servicer and specific ratings of KBRA herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

Late Collections”: With respect to any Mortgage Loan, Whole Loan, Trust AB Whole Loan, Companion Loan or BWP Trust Subordinate Companion Loan, all amounts received thereon prior to the related Determination Date, whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late payments or collections of principal or interest due in respect of such Mortgage Loan, Whole Loan, Trust AB Whole Loan, Companion Loan or BWP Trust Subordinate 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, Trust AB Whole Loan, Companion Loan or BWP Trust Subordinate Companion Loan, as applicable (without regard to any acceleration of amounts due under the predecessor Mortgage Loan, Whole Loan, Trust AB Whole Loan, Companion Loan or BWP Trust Subordinate 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. With respect to the Trust AB 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 BWP Trust Subordinate Companion Loan, as applicable, pursuant to the terms of the related Intercreditor Agreement.

 

Liquidation Event”: With respect to any Mortgage Loan or BWP Trust Subordinate Companion Loan or with respect to any REO Property (and the related REO Loan), any of the following events: (i) such Mortgage Loan or BWP Trust Subordinate Companion Loan is paid in full; (ii) a Final Recovery Determination is made with respect to such Mortgage Loan or BWP Trust Subordinate Companion Loan; (iii) such Mortgage Loan or BWP Trust Subordinate Companion Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan or BWP Trust Subordinate Companion Loan is purchased by the Special Servicer, or by any Companion

 

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Holder, Subordinate Loan-Specific Directing Certificateholder or any mezzanine lender (as applicable) pursuant to Section 3.18 (and the related Intercreditor Agreement, as applicable); (v) such Mortgage Loan or BWP Trust Subordinate Companion Loan is purchased by the Special Servicer, the 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 or BWP Trust Subordinate Companion Loan is sold by the Special Servicer pursuant to the terms of this Agreement.

 

Liquidation Expenses”: All customary, reasonable and necessary “out of pocket” costs and expenses incurred by the Special Servicer in connection with a liquidation of any Specially Serviced Mortgage Loan or REO Property (except with respect to a Non-Serviced Mortgaged Property) pursuant to Section 3.18 (including, without limitation, legal fees and expenses, committee or referee fees and, if applicable, brokerage commissions and conveyance taxes).

 

Liquidation Fee”: A fee payable to the Special Servicer with respect to each Specially Serviced Mortgage Loan or REO Property (except with respect to a Non-Serviced Mortgaged Property) as to which the Special Servicer receives (i) a full, partial or discounted payoff with respect thereto from the related Mortgagor or (ii) any Liquidation Proceeds or Insurance and Condemnation Proceeds with respect to the related Mortgage Loan (including the related Companion Loan or BWP Trust Subordinate Companion Loan, if applicable), or REO Property (in any case, other than amounts for which a Workout Fee has been paid, or will be payable), 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 Mortgage 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 Mortgage Loan by the 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 Event, if the Directing Certificateholder or an Affiliate thereof, purchases any Specially Serviced Mortgage Loan within ninety (90) days after the Special Servicer delivers to the Directing Certificateholder for its approval the initial Asset Status Report with respect to such Specially Serviced Mortgage Loan, the 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 clause (v) and clause (vi) 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 following the date of such holder’s purchase option first becoming exercisable during that period prior to such Mortgage Loan becoming a Corrected Mortgage Loan pursuant to the related Intercreditor Agreement, (d) with respect to a Serviced Pari Passu Companion Loan, (x) a repurchase of such Serviced Pari Passu 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

 

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repurchase occurs prior to the termination of the extended resolution period provided therein or (y) a purchase of such Serviced Pari Passu 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 BWP Trust Subordinate Companion Loan, if applicable) or Serviced Whole Loan becomes a Specially Serviced Mortgage Loan solely because of a Servicing Transfer Event described in clause (i) or (ii) of the definition of “Servicing Transfer Event”, Liquidation Proceeds are received within ninety (90) days following the related Maturity Date as a result of such Mortgage Loan (or BWP Trust Subordinate Companion Loan, if applicable) 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, the Special Servicer may still collect and retain a Liquidation Fee and similar fees from the related Mortgagor to the extent provided for in, or not prohibited by, the related loan documents); provided that the Liquidation Fee with respect to any Specially Serviced Mortgage 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 or BWP Trust Subordinate Companion Loan, as applicable, or REO Property and received by the Special Servicer as compensation within the prior twelve (12) months, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee; provided, however, that no Liquidation Fee will be less than $25,000.

 

Liquidation Fee Rate”: A rate equal to 1.0% with respect to any Specially Serviced Mortgage Loan (and each related Serviced Companion Loan or BWP Trust Subordinate Companion Loan) and REO Property.

 

Liquidation Proceeds”: Cash amounts received by or paid to the Master Servicer or the Special Servicer in connection with: (i) the liquidation (including a payment in full) of a Mortgaged Property or other collateral constituting security for a Defaulted Mortgage Loan or defaulted Companion Loan or defaulted BWP Trust Subordinate 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 Mortgage Loan pursuant to Section 3.18(a) or (B) any REO Property pursuant to Section 3.18(b); (iv) the repurchase of a Mortgage Loan or BWP Trust Subordinate Companion Loan by the applicable Mortgage Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase Agreement; (v) the purchase of a Mortgage Loan or REO Property by the Holders of the majority of the Controlling Class, the Special Servicer, the Master Servicer or the Holders of the Class R Certificates pursuant to Section 9.01; or (vi) the purchase of a Mortgage Loan or an REO Property by (a) the applicable AB Subordinate Companion Holder or the related Subordinate Loan-Specific Directing Certificateholder or (b) the related mezzanine lender pursuant to Section 3.18 and the related Intercreditor Agreement. 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. With respect to the Trust AB Whole Loan, as used in this Agreement, Liquidation Proceeds shall be allocated between the Trust Mortgage Loan and the BWP Trust Subordinate Companion Loan pursuant to the terms of the related Intercreditor Agreement.

 

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

 

Lower-Tier Principal Amount”: With respect to any Class of Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution Date, an amount equal to the Original Lower-Tier Principal Amount of such Class as specified in the 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 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(d)).

 

Lower-Tier REMIC”: One of three separate REMICs comprising a portion of the Trust Fund, the assets of which consist of the Mortgage Loans (exclusive of Excess Interest) and the BWP Trust Subordinate Companion Loan 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 Fund’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 Certificate Account (other than with respect to any Companion Loan or BWP Trust Subordinate 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 REMICs or the Grantor Trust.

 

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, for the benefit of Wells Fargo Bank, National Association, as Trustee, for the benefit of the registered holders of JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass-Through Certificates, Series 2015-C31, 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 6.07(a).

 

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

 

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

 

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

 

Merger Notice”: As defined in Section 6.02(b).

 

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

 

Monthly Payment”: With respect to any Mortgage Loan, the related Companion Loan or BWP Trust Subordinate Companion Loan, the scheduled monthly payment of principal and/or interest (other than Excess Interest) on such Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan, including any Balloon Payment, which is payable (as the terms of the applicable Mortgage Loan, Companion Loan or BWP Trust Subordinate 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, Companion Loan or BWP Trust Subordinate Companion Loan by reason of default thereunder and without regard to any Excess Interest.

 

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

 

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

 

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Mortgage”: With respect to any Mortgage Loan, Companion Loan or BWP Trust Subordinate 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 Deferred Interest”: With respect to any Mortgage Loan or BWP Trust Subordinate Companion Loan as of any Due Date that has been modified (or with respect to the BWP Trust Subordinate Companion Loan that has been effectively modified through the application of the provisions of the related Intercreditor Agreement (including, without limitation, provisions requiring such BWP Trust Subordinate Companion Loan to bear the economic effects of any modification of the related Mortgage Note)) to (i) reduce the rate at which interest is paid currently below the Mortgage Rate and (ii) capitalize the amount of such interest reduction, the excess, if any, of (a) interest accrued on the Stated Principal Balance of the related Mortgage Loan or BWP Trust Subordinate Companion Loan during the one-month interest accrual period set forth in the related Mortgage Note at the related Mortgage Rate over (b) the interest portion of the related Monthly Payment, as so modified or reduced, or, if applicable, the interest portion of the Assumed Scheduled Payment due on such Due Date. For the avoidance of doubt, with respect to any Whole Loan or Trust AB Whole Loan, any Mortgage Deferred Interest will be determined after giving effect to the application of the terms of the related Intercreditor Agreement and any applicable waterfall provisions allocating distributions between the Mortgage Loan and the related Companion Loan or BWP Trust Subordinate Companion Loan, as applicable. Any amounts of Mortgage Deferred Interest accrued in respect of the BWP Trust Subordinate Companion Loan shall be allocated to the Class BWP Certificates.

 

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

 

(i)          the original executed Mortgage Note bearing, or accompanied by, all prior and intervening endorsements, assignments or allonges showing a complete chain of endorsement or assignment from the originator of the related Mortgage Loan or BWP Trust Subordinate Companion Loan to the most recent endorsee, and further endorsed (at the direction of the Depositor given pursuant to the applicable Mortgage Loan Purchase Agreement), on its face or by allonge attached thereto, without recourse, representation or warranty, express or implied to the order of the Trustee in the following form: “Pay to the order of Wells Fargo Bank, National Association, as trustee for the benefit of the registered holders of JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass-Through Certificates, Series 2015-C31” or in blank; provided that the requirements of this clause (i) will be satisfied by delivery of a signed lost note affidavit and indemnity properly assigned or endorsed to the Trustee as described above, with a copy of the Mortgage Note attached to it;

 

(ii)          the original Mortgage (or a copy thereof certified from the applicable recording office) and originals (or copies thereof certified from the applicable recording office) of any intervening assignments thereof showing a

 

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complete chain of assignment from the originator of the related Mortgage Loan or BWP Trust Subordinate Companion Loan to the most recent mortgagee of record, in each case with evidence of recording indicated thereon (except for recording information not yet available if the Mortgage or an assignment thereof has not been returned from the applicable recording office);

 

(iii)          an original Assignment of Mortgage, in complete and recordable form (except for the name of the assignee, if delivered in blank, and except for recording information not yet available, if the Mortgage or an assignment thereof has not been returned from the applicable recording office), executed by the most recent assignee of record thereof prior to the Trustee, or if none, by the originator to “Wells Fargo Bank, National Association, as trustee for the benefit of the registered holders of JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass-Through Certificates, Series 2015-C31” or in blank and, 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;

 

(iv)          an original or copy of any related Assignment of Leases (if such item is a document separate from the Mortgage) and the originals or copies of any intervening assignments thereof showing a complete chain of assignment from the originator of the related Mortgage Loan or BWP Trust Subordinate Companion Loan to the most recent assignee of record, in each case with evidence of recording thereon (except for recording information not yet available, if the Assignment of Leases or an assignment thereof has not been returned from the applicable recording office);

 

(v)          an original assignment of any related Assignment of Leases (if such item is a document separate from the Mortgage and to the extent not already assigned as part of the Assignment of Mortgage referred to in clause (iii) of this definition), in recordable form (except for the name of the assignee, if delivered in blank, and except for recording information not yet available, if the instrument being assigned has not been returned from the applicable recording office), executed by the applicable assignee of record to “Wells Fargo Bank, National Association, as trustee for the benefit of the registered holders of JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass-Through Certificates, Series 2015-C31” or in blank and, 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;

 

(vi)          an original or copy of any related Security Agreement (if such item is a document separate from the Mortgage) and the originals or copies of any intervening assignments thereof showing a complete chain of assignment from the originator of the related Mortgage Loan or BWP Trust Subordinate Companion Loan to the applicable Mortgage Loan Seller;

 

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(vii)        an original assignment of any related Security Agreement (if such item is a document separate from the Mortgage), in complete form (except for the name of the assignee, if delivered in blank, and except for recording information not yet available if the instrument being assigned has not been returned from the applicable recording office), executed by the applicable Mortgage Loan Seller to “Wells Fargo Bank, National Association, as trustee for the benefit of the registered holders of JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass-Through Certificates, Series 2015-C31” or in blank and, 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;

 

(viii)        originals or copies of all consolidation, assumption, modification, written assurance and substitution agreements, with evidence of recording thereon, where appropriate, in those instances where the terms or provisions of the Mortgage, Mortgage Note or any related security document have been consolidated or modified or the Mortgage Loan or BWP Trust Subordinate Companion Loan has been assumed;

 

(ix)          the original lender’s title insurance policy issued on the date of the origination of the Mortgage Loan or BWP Trust Subordinate Companion Loan or a copy thereof, together with all endorsements or riders that were issued with or subsequent to the issuance of such policy, insuring the priority of the Mortgage as a first lien on the Mortgagor’s fee or leasehold interest in the Mortgaged Property, subject to the exceptions set forth therein, or if the policy has not yet been issued, an original or copy of a “marked-up” written commitment (marked as binding and in all cases countersigned by the title insurer or its authorized agent) or the pro forma or specimen title insurance policy (accepted or approved in writing by the title insurer or its authorized agent) or an agreement to provide the same pursuant to lender’s escrow trust instructions executed by an authorized representative of the title insurance company; provided the policy is issued within eighteen (18) months from the Closing Date, in connection with the related Mortgage Loan or BWP Trust Subordinate Companion Loan;

 

(x)          the original or copy of any guaranty of the obligations of the Mortgagor under the related Mortgage Loan or BWP Trust Subordinate Companion Loan and any intervening assignments;

 

(xi)          all UCC Financing Statements, assignments and continuation statements or copies thereof, as filed or recorded, or in form that is complete and suitable for filing or recording, as appropriate, or other evidence of filing or recording sufficient to perfect (and maintain the perfection of) the security interest held by the originator of the related Mortgage Loan or BWP Trust Subordinate Companion Loan (and each assignee of record prior to the Trustee) in and to the personalty of the Mortgagor at the Mortgaged Property (in each case with evidence of filing or recording thereon, with the exception of filing or recording information not yet available because the UCC Financing Statement, assignment

 

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or continuation statement, as the case may be, has not yet been returned from the applicable filing or recording office), and to transfer such security interest to the Trustee;

 

(xii)          the original power of attorney or a copy thereof (with evidence of recording thereon) granted by the Mortgagor if the Mortgage, Mortgage Note or other document or instrument referred to above was not signed by the Mortgagor;

 

(xiii)          with respect to any Mortgage Loan or BWP Trust Subordinate Companion Loan with Additional Debt secured by a lien on the related Mortgaged Property, a co-lender agreement, a subordination agreement or other intercreditor agreement, pursuant to which such Additional Debt will be subordinated to, or pari passu with, such Mortgage Loan or BWP Trust Subordinate Companion Loan as set forth in such agreement;

 

(xiv)          any additional documents required to be added to the Mortgage File pursuant to Article II of this Agreement;

 

(xv)          with respect to any Mortgage Loan or BWP Trust Subordinate Companion Loan secured by a Ground Lease, the related Ground Lease or a copy thereof and any related ground lessor estoppels;

 

(xvi)          an original of any letter of credit securing such Mortgage Loan or BWP Trust Subordinate Companion Loan and, within sixty (60) days of the Closing Date or such earlier date as required by the issuer of the letter of credit, a copy of the appropriate transfer or assignment documents (which may be in the form of an amendment) for such letter of credit;

 

(xvii)          a copy of any Environmental Indemnity Agreement, together with a copy of any environmental insurance policy;

 

(xviii)        a copy of any loan agreement(s);

 

(xix)          a copy of any escrow agreement(s);

 

(xx)          a copy of any property management agreement(s);

 

(xxi)         a copy of any franchise agreements and comfort letters or similar agreements related thereto and, with respect to any franchise agreement or comfort letter or similar agreement related thereto, any assignments thereof or any notice to the franchisor of the transfer of such Mortgage Loan or BWP Trust Subordinate Companion Loan and a request for the issuance of a new comfort letter in favor of the Trust;

 

(xxii)         a copy of any lock-box or cash management agreement(s);

 

(xxiii)        a list related to such Mortgage Loan or BWP Trust Subordinate Companion Loan indicating the related Mortgage Loan documents or BWP Trust

 

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Subordinate Companion Loan documents, as applicable, included in the related Mortgage File as of the Closing Date (the “Mortgage Loan Checklist”);

 

(xxiv)          a copy of all environmental reports that were received by the applicable Mortgage Loan Seller relating to the relevant Mortgaged Property;

 

(xxv)          an original assignment of all unrecorded documents relating to the Mortgage Loan or BWP Trust Subordinate Companion Loan if not already otherwise assigned;

 

(xxvi)          a copy of any Intercreditor Agreement entered in connection with any Whole Loan, the Trust AB Whole Loan or any existing mezzanine indebtedness;

 

(xxvii)          with respect to each Mortgage Loan that has a Companion Loan, a copy of the Mortgage Note related to such Companion Loan, rather than the original; and

 

(xxviii)          with respect to a Non-Serviced Mortgage Loan, a copy of the related Non-Serviced Pooling Agreement;

 

provided, however, that (a) whenever the term “Mortgage File” is used to refer to documents held by the Custodian, such term shall not be deemed to include such documents and instruments required to be included therein unless they are actually received by the Custodian, (b) if there exists with respect to any Crossed Mortgage Loan Group only one original or certified copy of any document referred to in the definition of “Mortgage File” covering all of the Mortgage Loans in such Crossed Mortgage Loan Group, then the inclusion of such original or certified copy in the Mortgage File for any of the Mortgage Loans constituting such Crossed Mortgage Loan Group shall be deemed the inclusion of such original or certified copy in the Mortgage File for each such Mortgage Loan, (c) to the extent that this Agreement refers to a “Mortgage File” for a Companion Loan, such “Mortgage File” shall be construed to mean the Mortgage File for the related Mortgage Loan (except that references to the Mortgage Note for a Companion Loan otherwise described above shall be construed to instead refer to a photocopy of such Mortgage Note), (d) with respect to any Mortgage Loan that has a Serviced Companion Loan, the execution and/or recordation of any assignment of Mortgage, any separate assignment of Assignment of Leases and any assignment of any UCC Financing Statement in the name of the Trustee shall not be construed to limit the beneficial interest of the related Companion Holder 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 collectively and (ii) any efforts undertaken by the Trustee, the Master Servicer, or the Special Servicer on its behalf to enforce or obtain the benefits of such instrument shall be construed to be so undertaken by Trustee, the Master Servicer or the Special Servicer for the benefit of the Trust as the holder of the applicable Mortgage Loan and the related Companion Holder 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

 

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Loan and the related Intercreditor Agreement, with respect to each of which the original shall be required) including a copy of the Mortgage securing the applicable Mortgage Loan and any assignments or other transfer documents referred to in clauses (iii), (v), (vii), (xi) and (xxv) 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 as regards the related Mortgage File (or any portion thereof) set forth herein or in the related Mortgage Loan Purchase Agreement will also be satisfied by the delivery, in compliance with the terms of the related Non-Serviced Pooling Agreement, by the applicable Mortgage Loan Seller of the documents specified above (other than the Mortgage Note and intervening endorsements evidencing such Mortgage Loan) to Wells Fargo Bank, National Association, as custodian under the related Non-Serviced Pooling Agreement (in such form as was delivered to Wells Fargo Bank, National Association, in such capacity).

 

Mortgage Loan”: Each of the mortgage loans (other than the Crossed Underlying Loans of a Crossed Mortgage Loan Group, it being understood that for the purposes of this Agreement each Crossed Mortgage Loan Group shall be treated as one Mortgage Loan) transferred and assigned to the Trustee pursuant to Section 2.01 and from time to time held in the Trust Fund. 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. As used in this Agreement, the term “Mortgage Loan” does include the Mortgage Loan associated with any Whole Loan or Trust AB Whole Loan, but does not include any related Companion Loan or BWP Trust Subordinate Companion Loan.

 

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 and BWP Trust Subordinate Companion Loan, if applicable.

 

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

 

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

 

(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;

 

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(vi)          the original principal balance;

 

(vii)         the Cut-off Date Principal 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;

 

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

 

(xi)          the applicable Servicing Fee Rate;

 

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

 

(xiii)          [Reserved];

 

(xiv)          whether such Mortgage Loan or BWP Trust Subordinate Companion Loan is secured by the related Mortgagor’s interest in a ground lease;

 

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

 

(xvi)          the originator of the related Mortgage Loan or BWP Trust Subordinate Companion Loan and the Mortgage Loan Seller;

 

(xvii)         whether the related Mortgage Loan or BWP Trust Subordinate Companion Loan has a guarantor;

 

(xviii)        whether the related Mortgage Loan or BWP Trust Subordinate Companion Loan is secured by a letter of credit;

 

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

 

(xx)          number of grace days;

 

(xxi)          whether a cash management agreement or lock-box agreement is in place;

 

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

 

(xxiii)          whether the related Mortgage Loan or BWP Trust Subordinate Companion Loan permits defeasance;

 

(xxiv)          the interest accrual period;

 

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(xxv)          Anticipated Repayment Date, if applicable;

 

(xxvi)          the Revised Rate of such Mortgage Loan or BWP Trust Subordinate Companion Loan, if any; and

 

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

 

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) JPMorgan Chase Bank, National Association, a national banking association, or its successor in interest, (ii) Barclays Bank PLC, a public limited company registered in England and Wales, or its successor in interest, (iii) RAIT, a Delaware limited liability company, or its successor in interest, (iv) RCMC, a Delaware corporation, or its successor in interest and (v) SMF II, a Delaware limited liability company, or its successor in interest. For the avoidance of doubt, any reference herein to the “Mortgage Loan Seller” as it relates to RAIT in connection with any repurchase obligations thereof shall also be a reference to RAIT Financial Trust to the extent that RAIT Financial Trust has, in accordance with the RAIT Financial Trust Guaranty, agreed to guaranty such repurchase obligations. For the avoidance of doubt, any reference herein to the “Mortgage Loan Seller” as it relates to RCMC in connection with any obligations thereof shall also be a reference to RTI to the extent that RTI has, in accordance with the related Mortgage Loan Purchase Agreement, agreed to cause RCMC to take any actions thereunder or, to the extent assigned to the Trustee, RTI otherwise has obligations under the related Mortgage Loan Purchase Agreement. For the avoidance of doubt, any reference herein to the “Mortgage Loan Seller” as it relates to SMF II in connection with any obligations thereof shall also be a reference to Starwood to the extent that Starwood has, in accordance with the related Mortgage Loan Purchase Agreement, agreed to cause SMF II to take any actions thereunder or, to the extent assigned to the Trustee, Starwood otherwise has obligations under the related Mortgage Loan Purchase Agreement.

 

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

 

Mortgage Rate”: With respect to: (i) any Mortgage Loan, related Serviced Pari Passu Companion Loan or BWP Trust Subordinate 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, related Serviced Pari Passu Companion Loan or BWP Trust Subordinate Companion Loan from time to time in accordance with the related Mortgage Note and applicable law; or (ii) any Mortgage Loan, related Serviced Pari Passu Companion Loan or BWP Trust Subordinate 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.

 

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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.

 

Net Aggregate Prepayment Interest Shortfall”: With respect to any Distribution Date, the amount, if any, by which (a) the aggregate of all Prepayment Interest Shortfalls incurred in connection with the receipt of Principal Prepayments on the Mortgage Loans during the related Due Period, exceeds (b) the aggregate amount deposited by the Master Servicer in the Certificate Account for such Distribution Date pursuant to Section 3.19 in connection with such Prepayment Interest Shortfalls.

 

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

 

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

 

Net Mortgage Rate”: With respect to any Mortgage Loan, any REO Loan (other than the portion of an REO Loan related to any Companion Loan) or BWP Trust Subordinate 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 or BWP Trust Subordinate Companion Loan will be determined without regard to any modification, waiver or amendment of the terms of the related Mortgage Loan or BWP Trust Subordinate Companion Loan, whether agreed to by the Master Servicer or the Special Servicer or resulting from a bankruptcy, insolvency or similar proceeding involving the 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 on the Regular Certificates, and the interest rate on the Uncertificated Lower-Tier Interests, 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

 

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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 Interest Reserve 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 or BWP Trust Subordinate Companion 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 Special Servicer on behalf of the Trust, including any lease renewed, modified or extended on behalf of the Trust, if the Trust has the right to renegotiate the terms of such lease.

 

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

 

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

 

Nonrecoverable P&I Advance”: Any P&I Advance previously made or proposed to be made in respect of a Mortgage Loan or REO Loan which, in the reasonable judgment of the Master Servicer or the Trustee, as applicable, 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 Special Servicer may, at its option (with respect to any Specially Serviced Mortgage Loan and, prior to the occurrence of a Consultation Termination Event (other than with respect to any Excluded Loan), in consultation with the Directing Certificateholder), make a determination in accordance with the Servicing Standard, that any P&I Advance previously made or proposed to be made is a Nonrecoverable P&I Advance and shall deliver to the Master Servicer (and with respect to a Serviced Mortgage Loan, to any Other Servicer) 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 Senior Trust 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 Master Servicer and the Trustee, provided, however, that the 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 the Special Servicer that such P&I Advance is or would be a Nonrecoverable P&I Advance, such decision shall remain with the Master Servicer or Trustee, as applicable. If the Special Servicer makes a determination that only a

 

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portion, and not all, of any previously made or proposed P&I Advance is a Nonrecoverable P&I Advance, the Master Servicer and the Trustee 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 or Non-Serviced Special Servicer, as applicable, in connection with a securitization of the related Non-Serviced Companion Loan determines that a P&I Advance with respect to the related Non-Serviced Companion Loan, if made, would be a Nonrecoverable P&I Advance, such determination shall not be binding on the Master Servicer and the Trustee as it relates to any proposed P&I Advance with respect to the related Non-Serviced Mortgage Loan. Similarly, with respect to the related Non-Serviced Mortgage Loan, if the Master Servicer or the Special Servicer determines that any P&I Advance with respect to a related Non-Serviced Mortgage Loan, if made, would be a Nonrecoverable P&I Advance, such determination shall not be binding on the related Non-Serviced Master Servicer and related Non-Serviced Trustee as it relates to any proposed P&I Advance with respect to the related Non-Serviced Companion Loan. In making such recoverability determination, the Master Servicer, Special Servicer or 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, Companion Loan or BWP Trust Subordinate Companion Loan as it may have been modified and (ii) the related Mortgaged Properties in their “as-is” or then-current conditions and occupancies, as modified by such party’s assumptions (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, (b) to estimate and consider (among other things) future expenses, (c) to estimate and consider (consistent with the Servicing Standard in the case of the Master Servicer and the Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) the timing of recoveries and (d) to give due regard to the existence of any Nonrecoverable Advances which, at the time of such consideration, the recovery of which are being deferred or delayed by the Master Servicer, 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 which, at the time of such consideration, the reimbursement of which is being deferred or delayed by the Master Servicer or the Trustee because there is insufficient principal available for such reimbursement, in light of the fact that proceeds on the related Mortgage Loan are a source of reimbursement not only for the P&I Advance under consideration, but also as a potential source of reimbursement of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may be being deferred or delayed. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and, consistent with the Servicing Standard, in the case of the Master Servicer or in its good faith business judgment in the case of the Trustee (solely in its capacity as Trustee), may obtain, promptly upon request, from the Special Servicer any reasonably required analysis, Appraisals or market value estimates or other information in the Special Servicer’s possession for making a recoverability determination. Absent bad faith, the Master Servicer’s, Special Servicer’s or the Trustee’s determination as to

 

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the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders. The determination by the Master Servicer, the Special Servicer or the Trustee, as applicable, that the Master Servicer or the Trustee, as applicable, has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any updated or changed recoverability determination, shall be evidenced by an Officer’s Certificate delivered by either the Special Servicer or the Master Servicer to the other 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), the Senior Trust Advisor (but only in the case of the Special Servicer) and the Depositor (and, in the case of a Serviced Mortgage Loan, any Other Servicer) or by the Trustee to the Depositor, the Master Servicer, the Special Servicer, the Senior Trust 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 Master Servicer, the Special Servicer or the Trustee, as applicable, forming the basis of such determination (which shall be accompanied by, to the extent available, income and expense statements, rent rolls, occupancy status, property inspections and any other information used by the Master Servicer, the Special Servicer or the Trustee, as applicable, to make such determination and shall include any existing Appraisal of the related Mortgage Loan, or the related Mortgaged Property). The Trustee shall be entitled to conclusively rely on the Master Servicer’s or Special Servicer’s determination that a P&I Advance is or would be nonrecoverable, and the Master Servicer shall be entitled to conclusively rely on the 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), Whole Loan, REO Property or Trust AB Whole Loan which, in the reasonable judgment of the Master Servicer, the 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, Whole Loan, REO Property or Trust AB Whole Loan. 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, Whole Loan or Trust AB Whole Loan as it may have been modified and (ii) the related Mortgaged Properties in their “as-is” or then current conditions and occupancies, as modified by such party’s assumptions (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, (b) to estimate and consider (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) future expenses and (c) to estimate and consider (among other things) the timing of recoveries. 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 that, at the time of such consideration, the reimbursement of which is being deferred or delayed by the Master Servicer,

 

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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) and, consistent with the Servicing Standard, in the case of the Master Servicer, may obtain, promptly upon request, from the Special Servicer any reasonably required analysis, Appraisals or market value estimates or other information in the Special Servicer’s possession for making a recoverability determination. The determination by the Master Servicer, the Special Servicer or the Trustee, as the case may be, that it has made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, or any updated or changed recoverability determination, shall be evidenced by an Officer’s Certificate delivered by either of the Special Servicer or 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), the Senior Trust Advisor (but only in the case of the Special Servicer) and the Depositor (and in the case of a Serviced Mortgage Loan, any Other Servicer), or by the Trustee to the Depositor, the Master Servicer, the Special Servicer, the Senior Trust Advisor and the Certificate Administrator (and in the case of a Serviced Mortgage Loan, any Other Servicer); provided, however, that the Special Servicer may, at its option and, prior to the occurrence of a Consultation Termination Event and only with respect to any Mortgage Loan other than an Excluded Loan, in consultation with the Directing Certificateholder, make a determination in accordance with the Servicing Standard, that any Servicing Advance previously made or proposed to be made is a Nonrecoverable Servicing Advance and shall deliver to the Master Servicer (and with respect to a Serviced Mortgage Loan, to any Other Servicer), the Trustee, the Certificate Administrator 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 Master Servicer, the Special Servicer and the Trustee, provided, however, that the 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 Special Servicer that such Servicing Advance is or would be a Nonrecoverable Servicing Advance, such decision shall remain with the Master Servicer or the Trustee, as applicable. If the Special Servicer makes a determination that only a portion, and not all, of any previously made or proposed Servicing Advance is a Nonrecoverable Servicing Advance, the Master Servicer and the Trustee shall each have the right to make its own subsequent determination that any remaining portion of any such previously made or proposed Servicing Advance is a Nonrecoverable Servicing Advance. The Officer’s Certificate shall set forth such determination of nonrecoverability and the considerations of the Master Servicer, the Special Servicer or the Trustee, as applicable, forming the basis of such determination (which shall be accompanied by, to the extent available, related income and expense statements, rent rolls, occupancy status and property inspections, and shall include any existing Appraisal with respect to the related Mortgage Loan, Serviced Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, or related Mortgaged Property). The Special Servicer shall promptly furnish any party required to make Servicing Advances hereunder with any information in its possession regarding the Specially Serviced Mortgage Loans and REO Properties as such party required to make Servicing Advances may reasonably request for purposes of making

 

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recoverability determinations. The Trustee shall be entitled to conclusively rely on the Master Servicer’s or Special Servicer’s, as the case may be, determination that a Servicing Advance is or would be nonrecoverable, and the Master Servicer shall be entitled to conclusively rely on the Special Servicer’s determination that a Servicing Advance is or would be nonrecoverable. Notwithstanding anything herein to the contrary, if the Special Servicer requests that the Master Servicer make a Servicing Advance, the Master Servicer may conclusively rely on such request as evidence that such advance is not a Nonrecoverable Servicing Advance; provided, however, the Special Servicer shall not be entitled to make such a request more frequently than once per calendar month with respect to Servicing Advances other than emergency advances (although such request may relate to more than one Servicing Advance). In the case of a 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 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 Pooling Agreement. For the avoidance of doubt, the Special Servicer shall not make any Servicing Advances.

 

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

 

Non-Serviced Certificate Administrator”: The “Certificate Administrator” under the Non-Serviced Pooling Agreement.

 

Non-Serviced Companion Loan”: The Brunswick Portfolio Pari Passu Companion Loans.

 

Non-Serviced Depositor”: The “Depositor” under the Non-Serviced Pooling Agreement.

 

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 Pooling Agreement.

 

Non-Serviced Intercreditor Agreement”: The Brunswick Portfolio Intercreditor Agreement.

 

Non-Serviced Master Servicer”: The “Master Servicer” under the Non-Serviced Pooling Agreement.

 

Non-Serviced Mortgage Loan”: The Brunswick Portfolio Mortgage Loan.

 

Non-Serviced Mortgaged Property”: The Brunswick Portfolio Mortgaged Property.

 

Non-Serviced Paying Agent”: The “Paying Agent” under the Non-Serviced Pooling Agreement.

 

 

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Non-Serviced Pooling Agreement”: With respect to the Brunswick Portfolio Whole Loan, the JPMBB Commercial Mortgage Securities Trust 2015-C30 Pooling and Servicing Agreement.

 

Non-Serviced Senior Trust Advisor”: The “Senior Trust Advisor” under the Non-Serviced Pooling Agreement.

 

Non-Serviced Special Servicer”: The “Special Servicer” under the Non-Serviced Pooling Agreement.

 

Non-Serviced Trust”: The “Trust” formed under the Non-Serviced Pooling Agreement.

 

Non-Serviced Trustee”: The “Trustee” under the Non-Serviced Pooling Agreement.

 

Non-Serviced Whole Loan”: The Brunswick Portfolio Whole Loan.

 

Non-Serviced Whole Loan Controlling Holder”: The “directing certificateholder” or similarly defined party under the Non-Serviced Pooling Agreement.

 

Non-Specially Serviced Mortgage Loan”: Any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan or BWP Trust Subordinate Companion Loan that is not a Specially Serviced Mortgage 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, unless, with respect to the Transfer of a Class R Certificate, (i) such person holds such Class R Certificate in connection with the conduct of a trade or business within the United States and furnishes the Transferor and the Certificate Registrar with an effective Internal Revenue Service Form W-8ECI (or successor form) or (ii) the Transferee delivers to both the Transferor and the Certificate Registrar an opinion of a nationally recognized tax counsel to the effect that such Transfer is in accordance with the requirements of the Code and the regulations promulgated thereunder and that such Transfer of the Class R Certificate will not be disregarded for federal income tax purposes. A Person shall be treated as a Non-U.S. Tax Person, (A) notwithstanding clause (i) of the preceding sentence, if it is a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) any interest in which is owned (or may be owned pursuant to the applicable partnership agreement), directly or indirectly (other than through a U.S. corporation), by a Non-U.S. Tax Person or (B) if such Person is a U.S. Tax Person with respect to whom income from a Class R Certificate is attributable to a foreign permanent establishment of fixed base, within the meaning of an applicable income treaty, of such Person or any other U.S. Tax Person.

 

Non-Waiving Successor”: As defined in Section 3.28(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; in

 

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the case of the Class X-C Certificates, the Class X-C 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 been engaged to rate any securities backed, in whole or in part, by a Serviced Pari Passu Companion Loan, or that such NRSRO has provided the Depositor with the appropriate certifications pursuant to paragraph (e) of Rule 17g-5 of the Exchange Act, such NRSRO has access to the Depositor’s 17g-5 website and such NRSRO will keep such information confidential, except to the extent such information has been made available to the general public.

 

OCC”: Office of the Comptroller of the Currency.

 

Offered Certificates”: The Class A-1, Class A-2, Class A-3, Class A-SB, Class A-S, Class B, Class C, Class EC, Class D, Class X-A and Class X-B Certificates.

 

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

 

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

 

Opinion of Counsel”: A written opinion of counsel, who may, without limitation, be salaried counsel for the Depositor, the Master Servicer, the Special Servicer or the Senior Trust Advisor, acceptable in form and delivered to the Trustee and the Certificate Administrator, except that any opinion of counsel relating to (a) the qualification of any Trust REMIC as a REMIC, (b) compliance with the REMIC Provisions, (c) the qualification of the Grantor Trust as a grantor trust, or (d) the resignation of the Master Servicer, the Special Servicer or the Depositor pursuant to Section 6.04, must be an opinion of counsel who is in fact Independent of the Depositor, the Master Servicer, the Special Servicer and the Senior Trust Advisor.

 

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

 

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

 

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

 

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

 

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

 

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

 

Other Securitization”: As defined in Section 11.06.

 

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

 

Other 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 or BWP Trust Subordinate Companion Loan), any advance made by the Master Servicer or the Trustee, as applicable, pursuant to Section 4.03 or Section 7.05.

 

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

 

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

 

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-SB Pass Through Rate, the Class A-S Pass Through Rate, the Class B Pass Through Rate, the Class C Pass Through Rate, the Class D Pass Through Rate, the Class E Pass Through Rate, the Class F Pass Through Rate, the Class NR Pass Through Rate, the Class X-A Pass Through Rate, the Class X-B Pass Through Rate, the Class X-C Pass Through Rate, the Class X-D Pass Through Rate or the Class BWP Pass-Through Rate.

 

PCAOB”: The Public Company Accounting Oversight Board.

 

Penalty Charges”: With respect to any Mortgage Loan (other than the Non-Serviced Mortgage Loan), Serviced Companion Loan or BWP Trust Subordinate Companion Loan (or any successor REO Loan), any amounts actually collected thereon (or, in the case of a

 

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Serviced Companion Loan or BWP Trust Subordinate Companion Loan (or any successor REO Loan thereto) that is part of a Serviced Whole Loan or Trust AB Whole Loan, as applicable, actually collected on such Serviced Whole Loan or Trust AB Whole Loan, as applicable, and allocated and paid on such Serviced Companion Loan or BWP Trust Subordinate Companion Loan, as applicable (or any successor REO Loan) in accordance with the related Intercreditor Agreement) that represent late payment charges or Default Interest, other than a Yield Maintenance Charge or any Excess Interest.

 

Percentage Interest”: As to any Certificate (other than the Class R and Class Z 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 and Class Z Certificates), the percentage interest is equal to the Denomination 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, in the case of the Exchangeable Certificates, in each case, after giving effect to any exchange and conversion for Class EC Certificates. With respect to a Class R Certificate or a Class Z Certificate, the percentage interest is set forth on the face thereof. With respect to the Class EC Certificates, the percentage interest is equal to the Denomination of such Certificate divided by the Original Certificate Balance as of the Closing Date of the Exchangeable Certificates exchanged and converted for such Class EC Certificates.

 

Performance Certification”: As defined in Section 11.06.

 

Performing Party”: As defined in Section 11.12.

 

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

 

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

 

(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

 

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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 (A) 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, (B) 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, (C) 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, (D) 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), (E) for maturities of less than three (3) months, a short-term rating of “R-1 (high)” by DBRS (if then rated by DBRS and, if not so rated, by two other NRSROs (which may be Moody’s and KBRA)), (F) for maturities greater than three (3) months, a long-term rating of “AAA” by DBRS (if then rated by DBRS and, if not so rated, by two other NRSROs (which may be Moody’s and KBRA)) and (G) 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 Rating Agency 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 mature in one (1) year or less from the date of acquisition, which debt obligations are rated in the highest rating categories of each Rating Agency (in the case of KBRA, if rated by KBRA; and in the case of DBRS, if then rated by DBRS and, if not so rated, by two other NRSROs (which may be Moody’s and KBRA)), if the obligations mature within 60 days; provided,

 

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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 (including both non-interest bearing discount obligations and interest bearing obligations) of any corporation or other entity organized under the laws of the United States or any state thereof payable on demand or on a specified date maturing in one (1) year or less from the date of acquisition thereof and which is rated in the highest rating category of each Rating Agency (in the case of KBRA, if rated by KBRA; and in the case of DBRS, if then rated by DBRS and, if not so rated, by two other NRSROs (which may be Moody’s and KBRA));

 

(vi)          money market funds, 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 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, as confirmed in a Rating Agency Confirmation relating to the Certificates), which may include the investments referred to in clause (i) hereof if so 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 3.30); and

 

(viii)          any other demand, money market or time depositor, 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

 

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

 

Permitted Special Servicer/Affiliate Fees”: Any commercially reasonable treasury management fees, banking fees, title agency fees, insurance commissions or fees and appraisal fees received or retained by the Special Servicer or any of its Affiliates in connection with any services performed by such party with respect to any Mortgage Loan, the BWP Trust Subordinate Companion Loan, any Serviced Whole Loan or REO Property in accordance with this Agreement.

 

Permitted Transferee”: Any Person or any agent thereof other than (a) a Disqualified Organization, (b) any other Person so designated by the Certificate Registrar who is unable to provide an Opinion of Counsel (provided at the expense of such Person or the Person requesting the transfer) to the effect that the transfer of an Ownership Interest in any Class R Certificate to such Person will not cause the Trust Fund to fail to qualify as one or more REMICs at any time that the Certificates are outstanding, (c) a Person that is a Non-U.S. Tax Person (other than (i) a Non-U.S. Tax Person in whose hands the income from such Class R Certificate is effectively connected with the conduct of a trade or business within the United States and that has furnished the transferor and the Certificate Registrar with an effective Internal Revenue Service Form W-8ECI or other prescribed form or (ii) a Non-U.S. Tax Person, if in connection with the proposed transfer of such Class R Certificate, the transferor provides an Opinion of Counsel to the Certificate Registrar to the effect that such transfer will not be disregarded for federal income tax purposes under Treasury Regulations Section 1.860G-3), (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 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).

 

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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, any Serviced Pari Passu Companion Loan or BWP Trust Subordinate Companion Loan that was subject to a Principal Prepayment in full or in part during the related Due Period, which Principal Prepayment was applied to such Mortgage Loan, Serviced Pari Passu Companion Loan or BWP Trust Subordinate Companion 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 and any Excess Interest), 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 the sum of (x) the related Net Mortgage Rate for such Mortgage Loan or BWP Trust Subordinate Companion Loan, as applicable, and (y) the Certificate Administrator Fee Rate and Senior Trust Advisor Fee Rate, on the amount of such Principal Prepayment from such Due Date to, but not including, the date of such prepayment (or any later date through which interest accrues).

 

Prepayment Interest Shortfall”: For any Distribution Date and with respect to any Mortgage Loan, any Serviced Pari Passu Companion Loan or BWP Trust Subordinate Companion Loan that was subject to a Principal Prepayment in full or in part during the related Due Period, which Principal Prepayment was applied to such Mortgage Loan, Serviced Pari Passu Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, after the related Determination Date (or, with respect to each Mortgage Loan, Serviced Pari Passu Companion Loan or BWP Trust Subordinate 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 and any Excess Interest), 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 the sum of (x) the related Net Mortgage Rate for such Mortgage Loan or BWP Trust Subordinate Companion Loan, as applicable and (y) the Certificate Administrator Fee Rate and the Senior Trust Advisor Fee Rate, 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 BWP Trust Subordinate Companion Loan, as applicable, and ending on such following Due Date. With respect to the Trust AB Whole Loan, any Prepayment Interest Shortfall for any Distribution Date shall be allocated first to the BWP Trust Subordinate Companion Loan (and, correspondingly, the Class BWP Certificates) and then to the Trust AB Mortgage Loan. Shortfalls allocable to the BWP Trust Subordinate Companion Loan as a result of Prepayment Interest Shortfalls not covered by Compensating Interest Payments shall be allocated to the Class BWP Certificates.

 

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.

 

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

 

Prime Rate”: The “Prime Rate” as published in the “Money Rates” section of the New York 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-SB, Class A-S, Class B, Class C, Class D, Class E, Class F and Class NR 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, with interest on such Nonrecoverable Advances at the Reimbursement Rate that are paid or reimbursed from principal collections on the Mortgage Loans in a period during which such principal collections would have otherwise been included in the Principal Distribution Amount for such Distribution Date and (B) Workout-Delayed Reimbursement Amounts paid or reimbursed from principal collections on the Mortgage Loans in a period during which such principal collections would have otherwise been included in the Principal Distribution Amount for such Distribution Date (provided that, in the case of clauses (A) and (B) above, if any of the amounts that were reimbursed from principal collections on the Mortgage Loans are subsequently recovered on the related Mortgage Loan, such recovery will increase the Principal Distribution Amount for the Distribution Date related to the period in which such recovery occurs). With respect to each Class of Exchangeable Certificates and the Class EC Certificates, for purposes of determining allocations and distributions under Section 4.01(a) of this Agreement as between the Exchangeable Certificates and the Class EC Certificates, all allocations of principal to each Class of Exchangeable Certificates for any Distribution Date shall be determined without regard to any exchange and conversion of such Exchangeable Certificates for Class EC Certificates; provided, however, that all amounts of principal that are allocable to Exchangeable Certificates that have been exchanged and converted to Class EC Certificates shall be deemed allocable to and shall be distributable to such Class EC Certificates, without duplication.

 

Principal Prepayment”: Any payment of principal made by the Mortgagor on a Mortgage Loan or BWP Trust Subordinate Companion 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

 

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distributed in respect of principal on the Class A-1, Class A-2, Class A-3, Class A-SB, Class A-S, Class B, Class C, Class D, Class E, Class F and Class NR Certificates for such preceding Distribution Date pursuant to Section 4.01(a). The Principal Shortfall for the initial Distribution Date will be zero. With respect to each Class of Exchangeable Certificates and the Class EC Certificates, for purposes of determining allocations and distributions under Section 4.01(a) of this Agreement as between the Exchangeable Certificates and the Class EC Certificates, all Principal Shortfalls of each Class of Exchangeable Certificates for any Distribution Date shall be determined without regard to any exchange and conversion of such Exchangeable Certificates for Class EC Certificates; provided, however, that all Principal Shortfalls that are allocable to Exchangeable Certificates that have been exchanged and converted for Class EC Certificates shall be deemed allocable to such Class EC Certificates, without duplication.

 

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

 

Privileged Information”: Any (i) correspondence between the Directing Certificateholder and the Special Servicer related to any Specially Serviced Mortgage 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 Fund’s position in any ongoing or future negotiations with the related Mortgagor or other interested party and (iii) information subject to attorney-client privilege. Both the Master Servicer and the Special Servicer shall be entitled to rely on any identification of materials as “attorney-client privileged” without liability for any such reliance hereunder.

 

Privileged Person”: The Depositor and its designees, the Initial Purchasers, the Underwriters, the Mortgage Loan Sellers, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, any Additional Servicer designated by the Master Servicer or the Special Servicer, the Senior Trust Advisor, any affiliate of the Senior Trust Advisor designated by the Senior Trust Advisor, any Companion Holder (or representative thereof) who provides an Investor Certification, 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 be entitled to receive (i) if such party is the Directing Certificateholder or any Controlling Class Certificateholder, any Excluded Information, and (ii) if such party is not the Directing Certificateholder or any Controlling Class Certificateholder, any information other than the Statement to Certificateholders. In determining whether any Person is an Additional Servicer or an Affiliate of the Senior Trust Advisor, the Certificate Administrator may rely on direction by the Master Servicer, the Special Servicer, each Mortgage Loan Seller or the Senior Trust Advisor, as the case may be.

 

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

 

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

 

Prospectus”: The Prospectus, dated May 29, 2015, as supplemented by the Prospectus Supplement.

 

Prospectus Supplement”: The Prospectus Supplement, dated August 14, 2015, relating to the offering of the Offered Certificates.

 

PTCE”: Prohibited Transaction Class Exemption.

 

Purchase Price”: With respect to any Mortgage Loan or BWP Trust Subordinate Companion Loan (or any related REO Loan) (including, to the extent required pursuant to the final paragraph hereof, any related Companion Loan) to be purchased pursuant to (A) Section 6 of the related Mortgage Loan Purchase Agreement by the related Mortgage Loan Seller, (B) Section 3.18, or (C) Section 9.01, a price, without duplication, equal to:

 

(i)          the outstanding principal balance of such Mortgage Loan or BWP Trust Subordinate Companion 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 such Mortgage Loan or BWP Trust Subordinate Companion 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 (exclusive of Default Interest and Excess Interest) to, but not including, the Due Date immediately preceding the Determination Date for the related Distribution Date in which such Purchase Price is included in the Available Distribution Amount or Class BWP Available Distribution Amount; plus

 

(iii)          all related Servicing Advances that have not been reimbursed out of collections from such Mortgage Loan or BWP Trust Subordinate Companion Loan (or any related REO Loan) and accrued and unpaid interest on related Advances at the Reimbursement Rate, and any Special Servicing Fees (whether paid or unpaid), and all additional Trust Fund expenses (except for Liquidation Fees) in respect of such Mortgage Loan or BWP Trust Subordinate Companion Loan (or any related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)); plus

 

(iv)          if such Mortgage Loan or BWP Trust Subordinate Companion Loan (or any related REO Loan) is being repurchased or substituted by the related Mortgage Loan Seller, pursuant to Section 6 of the applicable Mortgage Loan Purchase Agreement, all reasonable out-of-pocket expenses reasonably incurred or to be incurred by the Master Servicer, the Special Servicer, the Depositor, the Certificate Administrator and the Trustee in respect of the 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,

 

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including, without limitation, legal fees and expenses and any expenses of the Trust Fund relating to such Mortgage Loan or BWP Trust Subordinate Companion Loan (or any related REO Loan); plus

 

(v)          Liquidation Fees, if any, payable with respect to such Mortgage Loan or BWP Trust Subordinate Companion Loan (or any related REO Loan) (which will not include any Liquidation Fees if such repurchase occurs prior to the expiration of the Extended Cure Period).

 

Solely with respect to any Serviced Whole Loan or Trust AB Whole Loan to be sold pursuant to Section 3.18(a)(iii), “Purchase Price” shall mean the amount calculated in accordance with the preceding sentence in respect of the related Whole Loan or Trust AB Whole Loan, including, for such purposes, the Mortgage Loan and the related Companion Loan or BWP Trust Subordinate Companion Loan, as applicable. With respect to any REO Property to be sold pursuant to Section 3.18(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 or BWP Trust Subordinate Companion Loan). With respect to any sale pursuant to Section 3.18(a)(ii) or Section 3.18(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 or BWP Trust Subordinate 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, BWP Trust Subordinate Companion 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, at least “A-“ (or its equivalent) by one other nationally recognized insurance rating organization (which may include DBRS or KBRA) and (b) “A(low)” by DBRS (or, if not rated by DBRS, at least an equivalent rating as that listed above by one other nationally recognized insurance rating organization (which may include Moody’s or KBRA)) 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 at least one of the following Rating Agencies of at least (a) “A3” by Moody’s, (b) “A-“ by S&P, (c) “A-“ by Fitch, (d) “A-:X” by A.M. Best Company, Inc. or, (e) “A(low)” by DBRS, or, in the case of clauses (i) or (ii), any other insurer acceptable to the Rating Agencies, as evidenced by a Rating Agency Confirmation.

 

Qualified Replacement Special Servicer”: A replacement special servicer that (i) satisfies all of the eligibility requirements applicable to special servicers contained in this Agreement, (ii) is not an Affiliate of the Senior Trust Advisor, (iii) is not obligated to pay the

 

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Senior Trust Advisor (x) any fees or otherwise compensate the Senior Trust Advisor in respect of its obligations under this Agreement, and (y) for the appointment of the successor special servicer or the recommendation by the Senior Trust Advisor for the replacement Special Servicer to become the Special Servicer, (iv) is not entitled to receive any compensation from the Senior Trust Advisor other than compensation that is not material and is unrelated to the Senior Trust Advisor’s recommendation that such party be appointed as the replacement special servicer, (v) is not entitled to receive any fee from the Senior Trust Advisor for its appointment as successor special servicer, in each case, unless expressly approved by 100% of the Certificateholders, (vi) 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 (vii) is not a special servicer that has been cited by KBRA or DBRS as having servicing concerns as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by the applicable servicer prior to the time of determination.

 

Qualified Substitute Mortgage Loan”: A substitute mortgage loan (other than with respect to the Civic Opera Building Mortgage Loan, The Roosevelt New Orleans Waldorf Astoria Mortgage Loan, the Sunbelt Portfolio Mortgage Loan, the Brunswick Portfolio Mortgage Loan or the BWP Trust Subordinate Companion Loan, as applicable, for which no substitution will be permitted) replacing a deleted 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 deleted Mortgage Loan as of the Due Date in the calendar month during which the substitution occurs; (ii) have a Mortgage Rate not less than the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same Due Date as and grace period no longer than that of the deleted Mortgage Loan; (iv) accrue interest on the same basis as the deleted Mortgage Loan (for example, on the basis of a 360 day year consisting of twelve 30-day months); (v) have a remaining term to stated maturity not greater than, and not more than two (2) years less than, the remaining term to stated maturity of the deleted 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 deleted Mortgage Loan as of the Closing Date and 75%, in each case using the “value” for the Mortgaged Property as determined using an MAI appraisal; (vii) comply (except in a manner that would not be adverse to the interests of the Certificateholders) as of the date of substitution in all material respects with all of the representations and warranties set forth in the applicable Mortgage Loan Purchase Agreement; (viii) have an environmental report that indicates no material adverse environmental conditions with respect to the related Mortgaged Property and which will be delivered as a part of the related Mortgage File; (ix) have a then-current debt service coverage ratio at least equal to the greater of the original debt service coverage ratio of the deleted Mortgage Loan as of the Closing Date and 1.25x; (x) constitute a “qualified replacement mortgage” within the meaning of Section 860G(a)(4) of the Code as evidenced by an Opinion of Counsel (provided at the applicable Mortgage Loan Seller’s expense); (xi) not have a maturity date or an amortization period that extends to a date that is after the date two (2) years prior to the Rated Final Distribution Date; (xii) have comparable prepayment restrictions to those of the deleted Mortgage Loan; (xiii) not be substituted for a deleted Mortgage Loan unless

 

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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 Event has not occurred and is not continuing, by the Directing Certificateholder; (xv) prohibit defeasance within two (2) years of the Closing Date; (xvi) not be substituted for a deleted Mortgage Loan if it would result in the termination of the REMIC status of any of the Trust REMICs established under this Agreement or the imposition of tax on any of such Trust REMICs other than a tax on income expressly permitted or contemplated to be imposed by the terms of this Agreement, as determined by an Opinion of Counsel; (xvii) have an engineering report 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 deleted 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 and the Senior Trust Advisor 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 deleted 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 3.30(a).

 

RAIT”: RAIT Funding, LLC, and its successors in interest.

 

RAIT Financial Trust Guaranty”: That certain letter agreement dated as of August 28, 2015, by RAIT Financial Trust in favor of the Depositor related to the Mortgage Loan Purchase Agreement entered into by RAIT.

 

Rated Final Distribution Date”: As to each Class of Certificates, the Distribution Date in August 2048.

 

Rating Agency”: Each of Moody’s, KBRA and DBRS 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 given to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer, and specific ratings of Moody’s, KBRA and DBRS herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

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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 4.08(c).

 

Rating Agency Q&A Forum and Document Request Tool”: As defined in Section 4.08(c).

 

RCMC”: Redwood Commercial Mortgage Corporation, and its successors in interest.

 

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

 

Regular Certificates”: Any of the Class A-1, Class A-2, Class A-3, Class A-SB, Class A-S, Class B, Class C, Class D, Class E, Class F, Class NR, Class X-A, Class X-B, Class X-C 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 rules may be amended and are in effect from time to time, but only to the extent compliance is required as of the applicable date of determination, 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 the Master Servicer or the Special Servicer, as applicable, involved in, or responsible for, the administration and servicing of the Mortgage Loans, BWP Trust Subordinate Companion Loan or Companion Loans, or this Agreement and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s or employee’s knowledge of and familiarity with the particular subject, and, in the case of any certification required to be signed by a Servicing Officer, such an officer or employee whose name and specimen signature appears on a list of servicing officers furnished to the Trustee and/or the Certificate Administrator by the Master Servicer or the Special Servicer, as applicable, as such list may from time to time be amended.

 

Regulation D”: Regulation D under the Act.

 

Regulation S”: Regulation S under the Act.

 

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

 

Related Certificates

 

Related Uncertificated
Lower-Tier 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-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 D Certificates   Class LD Uncertificated Interest
Class E Certificates   Class LE Uncertificated Interest
Class F Certificates   Class LF Uncertificated Interest
Class NR Certificates   Class LNR Uncertificated Interest

 

Relevant Servicing Criteria” means 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, the Master Servicer or the Special Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the Relevant Servicing Criteria applicable to the Master Servicer, the Special Servicer, the Trustee and/or the Certificate Administrator.

 

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

 

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

 

REMIC Provisions”: Provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Sections 860A through 860G of subchapter M of chapter 1 of the Code, and related provisions, and temporary and final Treasury Regulations (or proposed regulations that would apply by reason of their proposed effective date

 

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to the extent not inconsistent with temporary or final regulations) and any rulings or announcements promulgated thereunder, as the foregoing may be in effect from time to time.

 

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

 

REO Account”: A segregated custodial account or accounts created and maintained by the Special Servicer pursuant to Section 3.16(b) on behalf of the Trustee for the benefit of the Certificateholders and with respect to any Serviced Whole Loan or Holders of the Class BWP Certificates, as applicable, for the benefit of the related Serviced Companion Noteholder or Trust AB Whole Loan, which shall initially be entitled “Midland Loan Services, a Division of PNC Bank, National Association, or the applicable successor special servicer, as Special Servicer, on behalf of Wells Fargo Bank, National Association, as Trustee, for the benefit of registered holders of JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass-Through Certificates, Series 2015-C31, REO Account”. 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 3.18.

 

REO Extension”: As defined in Section 3.16(a).

 

REO Loan”: Each of the Mortgage Loans (and, with respect to any Serviced Whole Loan or the Trust AB Whole Loan, the related Companion Loan or BWP Trust Subordinate 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 the 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, Companion Loan or BWP Trust Subordinate Companion Loan, if applicable, including, without limitation, with respect to the calculation of the Mortgage Rate in effect from time to time (such terms and conditions to be applied without regard to the default on such predecessor Mortgage Loan, Companion Loan or BWP Trust Subordinate 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, Companion Loan or BWP Trust Subordinate 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, Companion Loan or BWP Trust Subordinate Companion Loan, if applicable, as of the date of the related REO Acquisition, including, without limitation, accrued and unpaid interest, shall continue to be due and owing in respect of a REO Loan. All amounts payable or reimbursable to the Master Servicer, the Special Servicer, the Senior Trust Advisor, the Certificate Administrator or the Trustee, as applicable, in respect of the predecessor Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan, if applicable, as of the date of the related REO

 

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Acquisition, including, without limitation, any unpaid Special Servicing Fees and Servicing Fees, additional Trust Fund expenses and any unreimbursed Advances, together with any interest accrued and payable to the Master Servicer or the Trustee, as applicable, in respect of such Advances in accordance with Section 3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable to the Master Servicer, the Special Servicer, the Senior Trust Advisor, 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 or Trust AB Whole Loan, no amounts relating to the related REO Property or REO Loan allocable to the related Serviced Pari Passu Companion Loan or BWP Trust Subordinate 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 or Trust AB 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 or BWP Trust Subordinate Companion Loan, as set forth in the related Intercreditor Agreement.

 

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

 

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

 

Reportable Event”: As defined in Section 11.07.

 

Reporting Requirements”: As defined in Section 11.12.

 

Reporting Servicer”: The Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Senior Trust Advisor, the Custodian or any Servicing Function Participant engaged by such parties, as the case may be.

 

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

 

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

 

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

 

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

 

Requesting Party”: As defined in Section 3.30(a).

 

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

 

Responsible Officer”: When used with respect to (i) the Trustee, any officer of the Corporate Trust Office of the Trustee with direct responsibility for the administration of this Agreement and, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject and (ii) the Certificate Administrator, any officer assigned to the Corporate Trust Services group with direct responsibility for the administration of this Agreement and, with respect to a particular matter, any other officer to whom a particular matter is referred by the Certificate Administrator because of such officer’s knowledge of and familiarity with the particular subject.

 

Restricted Period”: The 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 Fee Rate”: An amount equal to 0.0025% per annum with respect to each Mortgage Loan.

 

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

 

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

 

RTI”: Redwood Trust, Inc., and its successors in interest.

 

Rule 144A”: Rule 144A under the Act.

 

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

 

S&P”: Standard & Poor’s Ratings Services, and its successors in interest. If neither S&P nor any successor remains in existence, “S&P” shall be deemed to refer to such

 

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other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, the Master Servicer, the Directing Certificateholder and the Special Servicer and specific ratings of S&P herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

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

 

Sarbanes-Oxley Certification”: 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 Monthly 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 Due Period, and all Assumed Scheduled Payments with respect to the Mortgage Loans for the related Due 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 Master Servicer as of the Business Day preceding the related P&I Advance Date) or (ii) advanced by the 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 Master Servicer as of the Business Day preceding the related P&I Advance Date), and to the extent not included in clause (a) above.

 

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

 

Security Agreement”: With respect to any Mortgage Loan or BWP Trust Subordinate Companion 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 (other than the Class A-S Certificates) or Class X Certificate.

 

Senior Trust Advisor”: Pentalpha Surveillance LLC, and its successors in interest and assigns, or any successor senior trust advisor appointed as herein provided.

 

Senior Trust Advisor Annual Report”: As defined in Section 3.31(c).

 

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Senior Trust Advisor Consulting Fee”: A fee for each Major Decision on which the Senior Trust Advisor has consulting obligations and performed its duties with respect to such Major Decision equal to $10,000 with respect to any Mortgage Loan or such lesser amount as the related Mortgagor agrees to pay, 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 Senior Trust Advisor may in its sole discretion reduce the Senior Trust Advisor Consulting Fee with respect to any Major Decision; provided, further, that the Master Servicer or Special Servicer, as applicable, may waive or reduce the amount of any Senior Trust Advisor Consulting Fee payable by the related Mortgagor if it determines that such full or partial waiver is in accordance with the Servicing Standard (provided that the Master Servicer or the Special Servicer, as applicable, shall consult, on a non-binding basis, with the Senior Trust Advisor prior to any such waiver or reduction).

 

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

 

Senior Trust Advisor Fee”: With respect to each Mortgage Loan, REO Loan (other than the portion of an REO Loan related to any Serviced Companion Loan) and BWP Trust Subordinate Companion Loan, the fee payable to the Senior Trust Advisor pursuant to Section 3.31(h).

 

Senior Trust Advisor Fee Rate”: With respect to each Interest Accrual Period related to any applicable Distribution Date, a per annum rate of 0.00210%.

 

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 Civic Opera Building Pari Passu Companion Loan, (b) The Roosevelt New Orleans Waldorf Astoria Pari Passu Companion Loans, (c) the Sunbelt Portfolio Pari Passu Companion Loan and (d) any AB Subordinate Companion Loan related to a Serviced AB Whole Loan, as applicable.

 

Serviced Companion Loan Securities”: Any class of securities backed, wholly or partially, by any Serviced Pari Passu Companion Loan.

 

Serviced Companion Noteholder”: Each of the holders of (a) the Civic Opera Building Pari Passu Companion Loan, (b) The Roosevelt New Orleans Waldorf Astoria Pari Passu Companion Loans, (c) the Sunbelt Portfolio Pari Passu Companion Loan and (d) any AB Subordinate Companion Loan related to a Serviced AB Whole Loan, as applicable.

 

Serviced Mortgage Loan”: Each of (a) the Civic Opera Building Mortgage Loan, (b) The Roosevelt New Orleans Waldorf Astoria Mortgage Loan, (c) the Sunbelt Portfolio

 

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Mortgage Loan and (d) any AB Mortgage Loan related to a Serviced AB Whole Loan, as applicable.

 

Serviced Pari Passu Companion Loan”: Each of (a) the Civic Opera Building Pari Passu Companion Loan, (b) The Roosevelt New Orleans Waldorf Astoria Pari Passu Companion Loans and (c) the Sunbelt Portfolio Pari Passu Companion Loan.

 

Serviced Pari Passu Mortgage Loan”: Each of (a) the Civic Opera Building Mortgage Loan, (b) The Roosevelt New Orleans Waldorf Astoria Mortgage Loan and (c) the Sunbelt Portfolio Mortgage Loan.

 

Serviced Pari Passu Whole Loan”: Each of (a) the Civic Opera Building Whole Loan, (b) The Roosevelt New Orleans Waldorf Astoria Whole Loan and (c) the Sunbelt Portfolio Whole Loan.

 

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 Civic Opera Building Whole Loan, (b) The Roosevelt New Orleans Waldorf Astoria Whole Loan, (c) the Sunbelt Portfolio Whole Loan and (d) any Serviced AB Whole Loan, as applicable.

 

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, (x) prior to contribution of such Serviced Companion Loan to an Other Securitization, a date as set forth in the related Intercreditor Agreement and (y) following contribution of such Serviced Companion Loan to an Other Securitization, the Business Day following the determination date set forth in the related Other Pooling and Servicing Agreement; provided, however, that no remittance is required to be made until one (1) Business Day after receipt of the related Monthly Payment with respect to the related 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 Master Servicer, the Special Servicer, Certificate Administrator, or the Trustee, as applicable, in connection with the servicing and administering of (a) a Mortgage Loan (and in the case of a Serviced Mortgage Loan or the Trust AB Mortgage Loan, the related Serviced Companion Loan or BWP Trust Subordinate 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) an REO Property,

 

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including, in the case of each of such clause (a) and clause (b), but not limited to, (x) the cost of (i) compliance with the Master Servicer’s obligations set forth in Section 3.03(c), (ii) the preservation, restoration and protection of a Mortgaged Property, (iii) obtaining any Insurance and Condemnation Proceeds or any Liquidation Proceeds of the nature described in clauses (i) (vi) of the definition of “Liquidation Proceeds,” (iv) any enforcement or judicial proceedings with respect to a Mortgaged Property, including foreclosures and (v) the operation, leasing, management, maintenance and liquidation of any REO Property and (y) any amount specifically designated herein to be paid as a “Servicing Advance”. Notwithstanding anything to the contrary, “Servicing Advances” shall not include allocable overhead of the Master Servicer or the Special Servicer, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses or costs and expenses incurred by any such party in connection with its purchase of a Mortgage Loan or REO Property. None of the Master Servicer, the Special Servicer nor 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 or BWP Trust Subordinate Companion Loan under the related Intercreditor Agreement or this Agreement.

 

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

 

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

 

Servicing Fee Rate”: With respect to each Mortgage Loan, BWP Trust Subordinate Companion Loan and REO Loan, a per annum rate equal to the rate set forth on the Mortgage Loan Schedule under the heading “Servicing Fee Rate”, in each case computed on the basis of the Stated Principal Balance of the related Mortgage Loan, BWP Trust Subordinate Companion Loan or REO Loan in the same manner in which interest is calculated in respect of such loans. With respect to the Civic Opera Building Pari Passu Companion Loan, the “Servicing Fee Rate” shall be a per annum rate equal to 0.0025%. With respect to The Roosevelt New Orleans Waldorf Astoria Pari Passu Companion Loans, the “Servicing Fee Rate” shall be a per annum rate equal to 0.0025%. With respect to the Sunbelt Portfolio Pari Passu Companion Loan, the “Servicing Fee Rate” shall be a per annum rate equal to 0.0025%.

 

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 BWP Trust Subordinate Companion Loan and (to the extent that the identified documents existed on or before the Closing Date and the applicable reference to Servicing File relates to any period after the Closing Date) delivered by the related Mortgage Loan Seller, to the Master Servicer: (i) a copy of any engineering reports or property condition reports; (ii) other than with respect to a hotel property (except with respect to tenanted commercial space within a hotel property), copies of a rent roll and, for any office, retail, industrial or warehouse property, a copy of all leases and estoppels and subordination and non-disturbance agreements delivered to the related Mortgage

 

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Loan Seller; (iii) copies of related financial statements or operating statements; (iv) all legal opinions (excluding attorney-client communications between the related Mortgage Loan Seller, and its counsel that are privileged communications or constitute legal or other due diligence analyses), Mortgagor’s certificates and certificates of hazard insurance and/or hazard insurance policies or other applicable insurance policies, if any, delivered in connection with the closing of the related Mortgage Loan; (v) a copy of the Appraisal for the related Mortgaged Property(ies); (vi) the documents that were delivered by or on behalf of the Mortgagor, which documents were required to be delivered in connection with the closing of the related Mortgage Loan; (vii) for any Mortgage Loan that the related Mortgaged Property is leased to a single tenant, a copy of the lease; and (viii) a copy of all environmental reports that were received by the applicable Mortgage Loan Seller, relating to the relevant Mortgaged Property.

 

Servicing Function Participant”: Any Additional Servicer, Sub-Servicer, Subcontractor or any other Person, other than the Master Servicer, the Special Servicer, the Trustee, the Senior Trust Advisor and the Certificate Administrator, that is performing activities that address the Servicing Criteria, unless (i) such Person’s activities relate only to 5% or less of the Mortgage Loans by unpaid principal balance as of any date of determination in accordance with Article XI or (ii) the Depositor reasonably determines that a Master Servicer or the Special Servicer may, for the purposes of the Exchange Act reporting requirements pursuant to applicable Commission guidance, take responsibility for the assessment of compliance with the Servicing Criteria of such Person. The Servicing Function Participants as of the Closing Date are listed on Exhibit GG 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 the Master Servicer, the Special Servicer or any Additional Servicer involved in, or responsible for, the administration and servicing of the Mortgage Loans, Serviced Companion Loans or BWP Trust Subordinate Companion Loan, whose name and specimen signature appear on a list of servicing officers furnished by the Master Servicer, the Special Servicer or any Additional Servicer to the Certificate Administrator, the Trustee, the Senior Trust Advisor and the Depositor on the Closing Date as such list may be amended from time to time thereafter.

 

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), related Companion Loan or BWP Trust Subordinate Companion Loan, the occurrence of any of the following events:

 

(i)          with respect to a Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan that is not a Balloon Mortgage Loan, (a) a payment default shall have occurred at its original Maturity Date, or (b) if the original Maturity Date of such Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan has been extended as provided herein, a payment default shall have occurred at such extended Maturity Date; or

 

(ii)          with respect to each Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan that is a Balloon Mortgage Loan, the Balloon

 

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Payment is delinquent and the related Mortgagor has not provided the Master Servicer, within sixty (60) days after the related Maturity Date, with a written and fully executed or otherwise binding commitment (subject only to customary final closing conditions) for refinancing, from an acceptable lender, reasonably satisfactory in form and substance to the Master Servicer (and the Master Servicer shall promptly forward such commitment to the Special Servicer), which provides that such refinancing will occur within one hundred-twenty (120) days of such related Maturity Date, provided that the Mortgage Loan and any related Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, will become a Specially Serviced Mortgage Loan immediately if the related Mortgagor fails to diligently pursue such financing or to pay any Assumed Scheduled Payment on the related Due Date (subject to any applicable grace period) at any time before the refinancing or, if such refinancing does not occur, the related Mortgage Loan and any related Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, will become a Specially Serviced Mortgage Loan at the end of such 120-day period (or for such shorter period beyond the date on which that Balloon Payment was due within which the refinancing is scheduled to occur pursuant to the commitment for refinancing or on which such commitment terminates); or

 

(iii)          any Monthly Payment (other than a Balloon Payment) that is more than sixty (60) days delinquent (unless, in the case of a Serviced Whole Loan, Trust AB Whole Loan or Mortgage Loan with mezzanine debt, prior to such Monthly Payment becoming more than sixty (60) days delinquent the holders of the related Companion Loan, the related Subordinate Loan-Specific Directing Certificateholder or the holders of related mezzanine debt, as applicable, cures such delinquency, subject to the terms and provisions of the related Intercreditor Agreement); or

 

(iv)          the Master Servicer makes a judgment, or receives from the Special Servicer a written determination of the Special Servicer (with respect to any Mortgage Loan other than an Excluded Loan, with the consent, prior to the occurrence and continuance of any Control Event, of the Directing Certificateholder, in the case of the Special Servicer), that a payment default is imminent or reasonably foreseeable and is not likely to be cured by the related Mortgagor within 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, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, is entered against the related Mortgagor; provided that if such decree or order is discharged or stayed within sixty (60) days of being entered, or if, as to a bankruptcy, the automatic stay is lifted within sixty (60) days of a filing for relief or the case is dismissed, upon such discharge, stay, lifting or dismissal such Mortgage Loan (and any related Companion Loan or BWP Trust

 

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Subordinate Companion Loan, as applicable), shall no longer be a Specially Serviced Mortgage Loan (and no Special Servicing Fees, Workout Fees or Liquidation Fees will be payable with respect thereto and any such fees actually paid shall be reimbursed to the Trust Fund by the Special Servicer); or

 

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

 

(vii)          the related Mortgagor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations; or

 

(viii)          a default of which the Master Servicer or the Special Servicer, as applicable, has notice (other than a failure by such Mortgagor to pay principal or interest) and which the Master Servicer or Special Servicer (in the case of the Special Servicer, with respect to any Mortgage Loan other than an Excluded Loan, prior to the occurrence and continuance of any Control Event, with the consent of the Directing Certificateholder) determines in its good faith reasonable judgment may materially and adversely affect the interests of the Certificateholders (including, with respect to the Trust AB Whole Loan, the Holders of the Class BWP Certificates) (and, with respect to any Serviced Whole Loan, the interests of the related Serviced Companion Noteholder), as a collective whole (taking into account the subordinate or pari passu nature of any Companion Loans or BWP Trust Subordinate Companion Loan, as the case may be), if applicable, has occurred and remained unremedied for the applicable grace period specified in the related Mortgage Loan or related Companion Loan or BWP Trust Subordinate Companion Loan documents, other than the failure to maintain terrorism insurance if such failure constitutes an Acceptable Insurance Default (or if no grace period is specified for those defaults which are capable of cure, sixty (60) days); or

 

(ix)          the Master Servicer or Special Servicer has received notice of the foreclosure or proposed foreclosure of any lien other than the Mortgage on the related Mortgaged Property; or

 

(x)          the Master Servicer or Special Servicer (in the case of the Special Servicer, with respect to any Mortgage Loan other than an Excluded Loan, prior to the occurrence and continuance of any Control Event, with the consent of the Directing Certificateholder) determines that (i) a default (other than as described in clause (iv) above) under a Mortgage Loan, related Companion Loan or BWP Trust Subordinate Companion Loan is imminent or reasonably foreseeable, (ii) such default will materially impair the value of the corresponding Mortgaged Property as security for the Mortgage Loan and related Companion Loan or BWP Trust Subordinate Companion Loan (if any) or otherwise materially adversely

 

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affect the interests of Certificateholders (including, with respect to the Trust AB Whole Loan, the Holders of the Class BWP Certificates) (and, with respect to any Serviced Whole Loan, the interests of the related Serviced Companion Noteholder), as a collective whole (taking into account the subordinate or pari passu nature of any Companion Loans or BWP Trust Subordinate Companion Loan, as the case may be), and (iii) the default will continue unremedied for the applicable cure period under the terms of the Mortgage Loan, related Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, or, if no cure period is specified and the default is capable of being cured, for thirty (30) days (provided that such 30-day grace period does not apply to a default that gives rise to immediate acceleration without application of a grace period under the terms of the Mortgage Loan, related Companion Loan or BWP Trust Subordinate Companion Loan, as applicable; provided that any determination that a Servicing Transfer Event has occurred under this clause (x) with respect to any Mortgage Loan, related Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, solely by reason of the failure (or imminent failure) of the related Mortgagor to maintain or cause to be maintained insurance coverage against damages or losses arising from acts of terrorism may only be made by the Special Servicer (and with respect to any Mortgage Loan other than an Excluded Loan, prior to the occurrence and continuance of any Control Event, with the consent of the Directing Certificateholder);

 

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

 

Significant Obligor”: As defined in Section 11.16.

 

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 45th day after the end of such calendar quarter.

 

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

 

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

 

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SMF II”: Starwood Mortgage Funding II LLC, a Delaware limited liability company, and its successors in interest.

 

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 E, Class F and Class NR Certificates; provided, however, that the Certificate Balances of the Class A-1, Class A-2, Class A-3, Class A-SB, Class A-S, Class B, Class C, Class EC and Class D Certificates have been retired.

 

Special Notice”: As defined in Section 5.06.

 

Special Servicer”: With respect to each of the Mortgage Loans (other than the Non-Serviced Mortgage Loan) and the Serviced Companion Loans or the BWP Trust Subordinate Companion Loan (if any), Midland Loan Services, a Division of PNC Bank, National Association, and its successors in interest and assigns, or any successor special servicer appointed as herein provided.

 

Special Servicing Fee”: With respect to each Specially Serviced Mortgage 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 Mortgage Loan and each REO Loan on a loan-by-loan basis (other than a Non-Serviced Mortgage Loan), 0.25000% per annum computed on the basis of the Stated Principal Balance of the related Mortgage Loan, Companion Loan and the BWP Trust Subordinate Companion Loan (in each case, including any REO Loan), as applicable, in the same manner as interest is calculated on the Specially Serviced Mortgage Loans.

 

Specially Serviced Mortgage Loan”: As defined in Section 3.01(a).

 

Startup Day”: The day designated as such in Section 10.01(b).

 

Starwood”: Starwood Mortgage Capital LLC, a Delaware limited liability company, or its successors in interest.

 

Stated Principal Balance”: With respect to any Mortgage Loan or BWP Trust Subordinate Companion Loan, as of any date of determination, an amount equal to (x) the Cut-off Date Principal 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) or BWP Trust Subordinate Companion Loan, plus (y) any Mortgage Deferred Interest added to the principal balance of such Mortgage Loan or BWP Trust Subordinate Companion Loan on or before the end of the immediately preceding Due Period minus (z) the sum of:

 

(i)          the principal portion of each Monthly Payment due on such Mortgage Loan or BWP Trust Subordinate Companion Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, the Due Date in the

 

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related month of substitution), to the extent received from the Mortgagor or advanced by the Master Servicer;

 

(ii)          all Principal Prepayments received with respect to such Mortgage Loan or BWP Trust Subordinate Companion Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, the Due Date in the related month of substitution);

 

(iii)          the principal portion of all Insurance and Condemnation Proceeds (to the extent allocable to principal on such Mortgage Loan or BWP Trust Subordinate Companion Loan and Liquidation Proceeds received with respect to such Mortgage Loan or BWP Trust Subordinate Companion Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, the Due Date in the related month of substitution); and

 

(iv)          any reduction in the outstanding principal balance of such Mortgage Loan or BWP Trust Subordinate Companion Loan resulting from a Deficient Valuation or a modification of such Mortgage Loan or BWP Trust Subordinate Companion Loan pursuant to the terms and provisions of this Agreement that occurred prior to the end of the Due Period for the most recent Distribution Date.

 

With respect to any REO Loan that is a successor to a Mortgage Loan or BWP Trust Subordinate Companion Loan, as of any date of determination, an amount equal to (x) the Stated Principal Balance of the predecessor Mortgage Loan or BWP Trust Subordinate Companion 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 or BWP Trust Subordinate Companion Loan, as applicable), Liquidation Proceeds and REO Revenues received with respect to such REO Loan.

 

A Mortgage Loan, BWP Trust Subordinate Companion Loan or an REO Loan that is a successor to a Mortgage Loan or BWP Trust Subordinate Companion 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 or Trust AB Whole Loan shall be the sum of the Stated Principal Balances of the related Mortgage Loan

 

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and the related Companion Loan or BWP Trust Subordinate Companion Loan, 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.

 

Statement to Certificateholders”: As defined in Section 4.02(a).

 

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 Senior Trust Advisor, an Additional Servicer or a Sub-Servicer.

 

Subordinate Certificate”: Any Class A-S, Class B, Class C, Class D, Class E, Class F and Class NR Certificate.

 

Subordinate Loan-Specific Directing Certificateholder”: With respect to the Class BWP Certificates and the BWP Trust Subordinate Companion Loan, the initial Subordinate Loan-Specific Directing Certificateholder shall be the Class BWP Directing Certificateholder. Thereafter, the Subordinate Loan-Specific Directing Certificateholder shall be the Person appointed by the Certificateholder(s) holding more than fifty percent (50%) of the Certificate Balance of the Class BWP Certificates.

 

Sub-Servicer”: Any Person that services Mortgage Loans or the BWP Trust Subordinate Companion Loan on behalf of the Master Servicer, the Special Servicer or an Additional Servicer and is responsible for the performance (whether directly or through Sub-Servicers or Subcontractors) of a substantial portion of the material servicing functions required to be performed by the Master Servicer, the Special Servicer or an Additional Servicer under this Agreement, with respect to some or all of the Mortgage Loans or the BWP Trust Subordinate Companion Loan that are identified in Item 1122(d) of Regulation AB.

 

Sub-Servicing Agreement”: The written contract between the Master Servicer or the Special Servicer, as the case may be, and any Sub-Servicer relating to servicing and administration of Mortgage Loans and the BWP Trust Subordinate Companion Loan as provided in Section 3.22.

 

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 deleted Mortgage Loans, the Substitution Shortfall

 

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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).

 

Sunbelt Portfolio Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of June 5, 2015, by and between the holder of the Sunbelt Portfolio Pari Passu Companion Loan and the holder of the Sunbelt Portfolio Mortgage Loan, relating to the relative rights of such holders of the Sunbelt Portfolio Whole Loan, as the same may be further amended in accordance with the terms thereof.

 

Sunbelt Portfolio Mortgage Loan”: With respect to the Sunbelt Portfolio Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 3 on the Mortgage Loan Schedule), which is designated as promissory note A-1, and is pari passu in right of payment with the Sunbelt Portfolio Pari Passu Companion Loan to the extent set forth in the Sunbelt Portfolio Intercreditor Agreement.

 

Sunbelt Portfolio Mortgaged Property”: The Mortgaged Property which secures the Sunbelt Portfolio Whole Loan.

 

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

 

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

 

Surviving Entity”: As defined in Section 6.02(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).

 

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The Roosevelt New Orleans Waldorf Astoria Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of July 17, 2015, by and between the holders of The Roosevelt New Orleans Waldorf Astoria Pari Passu Companion Loans and the holder of The Roosevelt New Orleans Waldorf Astoria Mortgage Loan, relating to the relative rights of such holders of The Roosevelt New Orleans Waldorf Astoria Whole Loan, as the same may be further amended in accordance with the terms thereof.

 

The Roosevelt New Orleans Waldorf Astoria Mortgage Loan”: With respect to The Roosevelt New Orleans Waldorf Astoria Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 2 on the Mortgage Loan Schedule), which is designated as promissory note A-1, and is pari passu in right of payment with The Roosevelt New Orleans Waldorf Astoria Pari Passu Companion Loans to the extent set forth in The Roosevelt New Orleans Waldorf Astoria Intercreditor Agreement.

 

The Roosevelt New Orleans Waldorf Astoria Mortgaged Property”: The Mortgaged Property which secures The Roosevelt New Orleans Waldorf Astoria Whole Loan.

 

The Roosevelt New Orleans Waldorf Astoria Pari Passu Companion Loans”: With respect to The Roosevelt New Orleans Waldorf Astoria Whole Loan, the two (2) Companion Loans evidenced by promissory notes A-2 and A-3 made by the related Mortgagor and secured by the Mortgage on The Roosevelt New Orleans Waldorf Astoria Mortgaged Property, which are not included in the Trust and which are pari passu in right of payment to The Roosevelt New Orleans Waldorf Astoria Mortgage Loan to the extent set forth in the related Mortgage Loan documents and as provided in The Roosevelt New Orleans Waldorf Astoria Intercreditor Agreement.

 

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

 

Transfer”: Any direct or indirect transfer, sale, pledge, hypothecation, or other form of assignment of any Ownership Interest in a Certificate.

 

Transferable Servicing Interest”: The amount by which the Servicing Fee otherwise payable to the Master Servicer hereunder exceeds the sum of (i) the Primary Servicing Fee and (ii) the amount of the Servicing Fee calculated using the Retained Fee Rate, which is subject to reduction by the Trustee pursuant to Section 3.11(a) of this Agreement.

 

Transferee”: Any Person who is acquiring by Transfer any Ownership Interest in a Certificate.

 

Transferee Affidavit”: As defined in Section 5.03(n)(ii).

 

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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: “JPMBB Commercial Mortgage Securities Trust 2015-C31”.

 

Trustee”: Wells Fargo Bank, National Association, or its successor in interest, in its capacity as trustee and its successors in interest, or any successor trustee appointed as herein provided.

 

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 paid by the Certificate Administrator to the Trustee from the Certificate Administrator Fee.

 

Trust AB Mortgage Loan”: The Bridgewater Place Mortgage Loan.

 

Trust AB Whole Loan”: The Bridgewater Place Whole Loan.

 

Trust Fund”: The corpus of the trust created hereby and to be administered hereunder, consisting of: (i) such Mortgage Loans and the BWP Trust Subordinate Companion Loan as from time to time are subject to this Agreement (including any Qualified Substitute Mortgage Loan replacing a deleted 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 and the BWP Trust Subordinate Companion Loan 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 Fund’s interest therein) or the Trust Fund’s beneficial interest in the Mortgaged Property securing a Non-Serviced Whole Loan acquired under the related Non-Serviced Pooling Agreement; (iv) all revenues received in respect of any REO Property (to the extent of the Trust Fund’s interest therein); (v) the Master Servicer’s, the Special Servicer’s, the Certificate Administrator’s and the Trustee’s rights under the insurance policies with respect to the Mortgage Loans and the BWP Trust Subordinate Companion Loan required to be maintained pursuant to this Agreement and any proceeds thereof (to the extent of the Trust Fund’s interest therein); (vi) any Assignment of Leases and any security agreements (to the extent of the Trust Fund’s interest therein); (vii) any letters of credit, indemnities, guaranties or lease enhancement policies given as additional security for any related Mortgage Loans and the BWP Trust Subordinate Companion Loan (to the extent of the Trust Fund’s interest therein); (viii) all assets deposited in the Servicing Accounts (to the extent of the Trust Fund’s interest therein), amounts on deposit in the Certificate Account (to the extent of the Trust Fund’s interest therein), the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Class EC Distribution Account, the BWP REMIC Distribution Account, the Excess Interest Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account (to the extent of the Trust Fund’s

 

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interest in such Gain-on-Sale Reserve Account) and any REO Account (to the extent of the Trust Fund’s interest in such REO Account), including any reinvestment income, as applicable; (ix) any Environmental Indemnity Agreements (to the extent of the Trust Fund’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) $200 to be deposited by the Depositor into the Upper-Tier REMIC Distribution Account on the Closing Date in respect of the Class X-B Certificates and the Class X-C Certificates; (xii) the Uncertificated Lower-Tier Interests; and (xiii) the proceeds of the foregoing (other than any interest earned on deposits in the lock-box accounts, cash collateral accounts, escrow accounts and any reserve accounts, to the extent such interest belongs to the related Mortgagor).

 

Trust REMIC”: As defined in the Preliminary Statement.

 

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.

 

Uncertificated Lower-Tier Interests”: Any of the Class LA1, Class LA2, Class LA3, Class LASB, Class LAS, Class LB, Class LC, Class LD, Class LE, Class LF and Class LNR Uncertificated Interests.

 

Underwriters”: J.P. Morgan Securities LLC, Barclays Capital Inc. and Drexel Hamilton, LLC.

 

Uninsured Cause”: Any cause of damage to property subject to a Mortgage such that the complete restoration of such property is not fully reimbursable by the hazard insurance policies or flood insurance policies required to be maintained pursuant to Section 3.07.

 

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

 

Unliquidated Advance”: Any Advance previously made by a party hereto that has been previously reimbursed, as between the Person that made the Advance hereunder, on the one hand, and the Trust Fund, 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 Trust Fund expenses 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

 

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represents a recovery of principal for which no advance was previously made pursuant to Section 4.03 in respect of a preceding Distribution Date.

 

Upper-Tier REMIC”: One of the three separate REMICs comprising the Trust Fund, the assets of which consist of the Uncertificated Lower-Tier Interests, $200 to be deposited by the Depositor into the Upper-Tier REMIC Distribution Account on the Closing Date with respect to the Class X-B Certificates and the Class X-C Certificates 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, for the benefit of Wells Fargo Bank, National Association, as Trustee, for the benefit of the registered holders of JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass-Through Certificates, Series 2015-C31, 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 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 any other Class of Regular Certificates (other than the Class X Certificates), a percentage equal to the product of 98% and a fraction, the numerator of which is equal to the Certificate Balance (and solely in connection with any vote for purposes of determining whether to remove the Special Servicer pursuant to Section 7.01(d) or the Senior Trust Advisor pursuant to Section 3.31(i), taking into account any notional reduction in the Certificate Balance for Appraisal Reductions allocated to the Certificates pursuant to Section 4.05(a) hereof) of such Class (without giving effect to any exchange of the Exchangeable Certificates to Class EC Certificates), in each case, determined as of the Distribution Date immediately preceding such time, and the denominator of which is equal to the aggregate Certificate Balance (and solely in connection with any vote for purposes of determining whether to remove the Special Servicer pursuant to Section 7.01(d) or the Senior Trust Advisor pursuant to Section 3.31(i), taking into account any notional reduction in the

 

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Certificate Balance for Appraisal Reductions allocated to the Certificates pursuant to Section 4.05(a) hereof) of the Certificates (other than the Class R, Class Z and Class X Certificates) (and without giving effect to any exchange of the Exchangeable Certificates to Class EC Certificates), each determined as of the Distribution Date immediately preceding such time. None of the Class R, Class BWP or Class Z Certificates will be entitled to any Voting Rights. Voting Rights allocated to a Class of Certificateholders shall be allocated among such Certificateholders in proportion to the Percentage Interests evidenced by their respective Certificates. In addition, if Exchangeable Certificates are exchanged for Class EC Certificates, Certificateholders of such Class EC Certificates will be entitled to exercise the Voting Rights that would otherwise be allocated to the Exchangeable Certificates converted for such Class EC Certificates. Appraisal Reductions shall not result in a change in the Class Voting Rights of any Class of Regular Certificates.

 

Weighted Average Net Mortgage Rate”: With respect to any Distribution Date, the weighted average of the applicable Net Mortgage Rates of the Mortgage Loans as of the first day of the related Due Period, weighted on the basis of their respective Stated Principal Balances as of the first day of such Due Period (after giving effect to any payments received during any applicable grace period).

 

WHFIT”: shall mean 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”: shall mean Treasury Regulations Section 1.671-5, as amended or successor provisions.

 

WHMT”: A “Widely Held Mortgage Trust” as that term is defined in Treasury Regulations Section 1.671-5(b)(23) or successor provisions.

 

Whole Loan”: Any of (i) the Civic Opera Building Whole Loan, (ii) The Roosevelt New Orleans Waldorf Astoria Whole Loan, (iii) the Sunbelt Portfolio Whole Loan, (iv) the Brunswick Portfolio Whole Loan or (v) any AB Whole Loan, as applicable.

 

Withheld Amounts”: As defined in Section 3.25(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 Monthly Payments under its modified terms, would then constitute) a Corrected Mortgage Loan, together with (to the extent accrued and unpaid) interest on such Advances, to the extent that (i) such Advance (and accrued and unpaid interest thereon) is not reimbursed to the Person who made such Advance on or before the date, if any, on which such Mortgage Loan becomes a Corrected Mortgage Loan and (ii) the amount of such Advance (and accrued and unpaid interest thereon) becomes an obligation of the related Mortgagor to pay such amount under the terms of the modified loan documents. That any amount constitutes all or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner limit the right of any Person hereunder to determine in the future that such amount instead constitutes a Nonrecoverable Advance.

 

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Workout Fee”: The fee paid to the Special Servicer with respect to each Corrected Mortgage Loan in accordance with Section 3.11(c).

 

Workout Fee Rate”: With respect to each Corrected Mortgage Loan, a fee of 1.0% of each collection (other than Penalty Charges and Excess Interest) of interest and principal (other than any amount for which a Liquidation Fee would be paid), including (i) Monthly Payments, (ii) Balloon Payments and (iii) payments (other than those included in clause (i) or (ii) of this definition) at maturity, received on each Corrected Mortgage Loan for so long as it remains a Corrected Mortgage Loan.

 

Yield Maintenance Charge”: With respect to any Mortgage Loan, REO Loan or BWP Trust Subordinate Companion Loan, the yield maintenance charge or prepayment premium set forth in the related Mortgage Loan documents or BWP Trust Subordinate Companion Loan documents; provided that no amounts shall be considered Yield Maintenance Charges until there has been a full recovery of all principal, interest and other amounts then due under such Mortgage Loan, BWP Trust Subordinate Companion Loan or REO Loan.

 

YM Group”: YM Group A, YM Group B, YM Group C or YM Group D, as applicable.

 

YM Group A”: Collectively, the Class A Certificates and the Class X-A Certificates.

 

YM Group B”: Collectively, the Class B Certificates and the Class X-B Certificates.

 

YM Group C”: Collectively, the Class C Certificates and the Class X-C Certificates.

 

YM Group D”: Collectively, the Class D Certificates and the Class X-D Certificates.

 

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 or with respect to the Class BWP Certificates) provided for herein shall be made on the basis of a 360-day year consisting of twelve 30-day months.

 

(ii)          Any Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan payment is deemed to be received on the date such payment is actually received by the Master Servicer or the Special Servicer; provided, however, that for purposes of calculating distributions on the Certificates, Principal Prepayments with respect to any Mortgage Loan or BWP Trust Subordinate Companion Loan, as applicable, 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

 

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to reduce the outstanding principal balance of such Mortgage Loan or BWP Trust Subordinate Companion Loan, as applicable, on which interest accrues.

 

(iii)          Any reference to the Certificate Balance of any Class of Principal Balance Certificates or Class BWP Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Principal Balance Certificates or Class BWP Certificates on such Distribution Date after giving effect to (a) any distributions made on such Distribution Date pursuant to Section 4.01(a), (b) and (d), (b) any Collateral Support Deficit allocated to such Class of Principal Balance Certificates or any Class BWP Collateral Support Deficit allocated to the Class BWP Certificates, as applicable, on that Distribution Date pursuant to Section 4.04, (c) the addition of any Certificate Deferred Interest allocated to such Class of Principal Balance Certificates or of any Class BWP Certificate Deferred Interest allocated to the Class BWP Certificates and added to such Certificate Balance pursuant to Section 4.06, and (d) any recoveries on the related Mortgage Loans or the BWP Trust Subordinate Companion Loan, as applicable, of Nonrecoverable Advances (plus interest thereon) that were previously reimbursed from principal collections on the related Mortgage Loans, that resulted in a reduction of the Principal Distribution Amount, which recoveries are allocated to such Class of Principal Balance Certificates, and added to the Certificate Balance pursuant to Section 4.04(a).

 

(iv)          All net present value calculations and determinations made with respect to a Mortgage Loan, Serviced Companion Loan, BWP Trust Subordinate Companion Loan, Mortgaged Property or REO Property (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan, Serviced Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, or sale of a Mortgage Loan or BWP Trust Subordinate Companion Loan, by the Special Servicer, the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Mortgagor on similar non-defaulted debt of such Mortgagor as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan, Serviced Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, based on its outstanding principal balance, 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 words of similar import shall be construed to mean, for any Serviced Mortgage Loan or Trust AB Whole Loan, an expense that shall be applied in accordance with the related Intercreditor Agreement or, if no application is specified in the related Intercreditor Agreement, then, to the extent such Intercreditor Agreement refers to this Agreement for the application of trust expenses or such Intercreditor Agreement does not prohibit the following application of trust expenses (i) with respect to any Serviced Pari Passu Whole Loan, pro rata and pari passu, to the Trust Fund and Serviced Pari Passu Companion Loan in accordance with the respective outstanding principal balances of the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan, (ii) with respect to any AB Whole Loan, first, to the related AB Subordinate Companion Loan and then, to the Trust Fund or (iii)

 

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with respect to the Trust AB Whole Loan, first, to the related BWP Trust Subordinate Companion Loan and then, to the related Trust AB Mortgage Loan.

 

[End of Article I]

 

Article II

CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES

 

Section 2.01          Conveyance of Mortgage Loans and the BWP Trust Subordinate Companion Loan. (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 Uncertificated Lower-Tier Interests) all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in, to and under (i) the Mortgage Loans and the BWP Trust Subordinate Companion Loan identified on the Mortgage Loan Schedule, (ii) Sections 1, 2, 3, 4, 5 (excluding Section 5(d), 5(g) and 5(h)), 6(a) (excluding clauses (viii) and (xii) of Section 6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 10, 11, 13, 14, 15, 17, 18 and 19 of each of the Mortgage Loan Purchase Agreements, Sections 20 and 21 of the Mortgage Loan Purchase Agreement among the Depositor, SMF II and Starwood and Sections 20 and 21 of the Mortgage Loan Purchase Agreement among the Depositor, RTI and RCMC; (iii) the RAIT Financial Trust Guaranty; (iv) the Intercreditor Agreements, (v) $200 to be deposited by the Depositor into the Upper-Tier REMIC Distribution Account on the Closing Date with respect to the Class X-B Certificates and the Class X-C Certificates; and (vi) all other assets included or to be included in the Trust Fund. Such assignment includes all interest and principal received or receivable on or with respect to the Mortgage Loans and the BWP Trust Subordinate Companion Loan (in each case, other than (i) payments of principal and interest due and payable on the Mortgage Loans and the BWP Trust Subordinate Companion Loan on or before the Cut-off Date; (ii) prepayments of principal collected on or before the Cut-off Date; and (iii) with respect to those Mortgage Loans that were closed in August 2015 but have their first Due Date in September 2015, any interest amounts relating to the period prior to the Cut-off Date). The transfer of the Mortgage Loans and the BWP Trust Subordinate Companion Loan and the related rights and property accomplished hereby is absolute and, notwithstanding Section 12.07, is intended by the parties to constitute a sale. In connection with the assignment to the Trustee of (A) Sections 1, 2, 3, 4, 5 (excluding Section 5(d), 5(g) and 5(h)), 6(a) (excluding clauses (viii) and (xii) of Section 6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 10, 11, 13, 14, 15, 17, 18 and 19 of each of the Mortgage Loan Purchase Agreements, (B) Sections 20 and 21 of the Mortgage Loan Purchase Agreement among the Depositor, SMF II and Starwood, (C) Sections 20 and 21 of the Mortgage Loan Purchase Agreement among the Depositor, RTI and RCMC, and (D) the RAIT Financial Trust Guaranty, it is intended that the Trustee get the benefit of Sections 10, 11 and 14 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, 11 and 14 in connection therewith.

 

(b)          In connection with the Depositor’s assignment pursuant to subsection (a) above, the Depositor shall direct, and hereby represents and warrants that it has directed, the

 

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Mortgage Loan Sellers pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with, the Custodian (or with respect to letters of credit, the Master Servicer), on or before the Closing Date, the Mortgage File for each Mortgage Loan and BWP Trust Subordinate Companion Loan so assigned, with copies to the Master Servicer (except, in the case of Serviced Mortgage Loans, for letters of credit); provided that, with respect to the BWP Trust Subordinate Companion Loan, only the documents and instruments specifically described in the definition of “Mortgage File” for the BWP Trust Subordinate Companion Loan shall be delivered to the Custodian and the remaining documents and instruments in the related Mortgage File shall be delivered in connection with the related Mortgage Loan. If the applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan or BWP Trust Subordinate Companion 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 or BWP Trust Subordinate Companion Loan, any of the documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi) and (xii) 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 Closing Date, and either the original of such non-delivered document or instrument, or a photocopy thereof (certified by the appropriate county recorder’s office or the applicable title insurance company, in the case of the documents and/or instruments referred to in clause (ii) of the definition of “Mortgage File”, to be a true and complete copy of the original thereof submitted for recording), with evidence of filing or recording thereon, is delivered to the Custodian within one hundred-eighty (180) days of the Closing Date (or within such longer period, not to exceed eighteen (18) months, after the Closing Date as the Custodian shall consent to as long as the applicable Mortgage Loan Seller is, as certified in writing to the Trustee and the Custodian no less often than every ninety (90) days following such 180–day period after the Closing Date, attempting in good faith to obtain from the appropriate public filing office or county recorder’s office such original or photocopy). If the applicable Mortgage Loan Seller is required to, but cannot, deliver, or cause to be delivered, as to any Mortgage Loan or BWP Trust Subordinate Companion Loan, any of the documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi) and (xii) (or, if applicable, a copy thereof) of the definition of “Mortgage File,” with evidence of filing or recording thereon, 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

 

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Agreement and this Section 2.01(b) shall be deemed to have been satisfied as to such non-delivered document or instrument, and such non-delivered document or instrument shall be deemed to have been included in the Mortgage File, if a photocopy of such non-delivered document or instrument (with evidence of filing or recording thereon and certified in the case of the documents and/or instruments referred to in clause (ii) of the definition of “Mortgage File” by the appropriate county recorder’s office or the applicable title insurance company to be a true and complete copy of the original thereof submitted for recording) is delivered to the Custodian on or before the Closing Date. Neither the Trustee nor any Custodian 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 or BWP Trust Subordinate Companion 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) (to the extent not already assigned pursuant to clause (iii)), clause (vii) (to the extent not already assigned pursuant to clause (iii)) or clause (xi) 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 or BWP Trust Subordinate Companion Loan on the Closing Date an omnibus assignment of such Mortgage Loan or BWP Trust Subordinate Companion Loan substantially in the form of Exhibit H; provided that all required original assignments with respect to such Mortgage Loan or BWP Trust Subordinate Companion Loan, as applicable, (in fully complete and recordable form or form suitable for filing or recording, if applicable) are delivered to the Custodian within one hundred-eighty (180) days after the Closing Date (or within such longer period, not to exceed eighteen (18) months, which the Custodian shall consent to so long as the applicable Mortgage Loan Seller is, as certified in writing to the Trustee and the Custodian no less often than every ninety (90) days following such 180–day period after the Closing Date, attempting in good faith to obtain from the appropriate public filing office or county recorder’s office the applicable filing or recording information as to the related document or instrument); and provided, further, that in the case of a Non-Serviced Mortgage Loan, the delivery of any such assignments shall be subject to clause (e) and/or clause (f) of the final proviso to the definition of “Mortgage File” herein. If, in accordance with the related Mortgage Loan Purchase Agreement and consistent with Section 2.01(c) of this Agreement, as to any Mortgage Loan or BWP Trust Subordinate Companion Loan, the related Mortgage Loan Seller or its agent is responsible for recording or filing, as applicable, any one of the assignments in favor of the Trustee referred to in clause (iii), clause (v) (to the extent not already assigned pursuant to clause (iii)) or clause (xi) of the definition of “Mortgage File”, such Mortgage Loan Seller may provisionally satisfy the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) with respect to such assignment by delivering to the Custodian with respect to such Mortgage Loan or BWP Trust Subordinate Companion Loan on the Closing Date a copy of such assignment in the form sent for recording or filing or (except for recording or filing information not yet available) to be sent for recording or filing; provided that an original or copy of such assignment (with evidence of recording or filing, as applicable, indicated thereon) shall be delivered to the Custodian as contemplated by Section 2.01(c) of this Agreement. Notwithstanding anything herein to the contrary, with respect

 

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to letters of credit referred to in clause (xvi) of the definition of “Mortgage File” and relating to a Serviced Mortgage Loan, the applicable Mortgage Loan Seller shall deliver the original to the Master Servicer (which letter of credit shall be titled in the name of, or assigned to, “Midland Loan Services, a Division of PNC Bank, National Association, as Master Servicer, on behalf of Wells Fargo Bank, National Association, as Trustee, for the benefit of registered holders of JPMBB Commercial Mortgage Securities Trust 2015-C31, Commercial Mortgage Pass-Through Certificates, Series 2015-C31”), and a copy to the Custodian or, if such original has been submitted by the applicable Mortgage Loan Seller to the issuing bank to effect a reissuance, assignment or amendment of such letter of credit (changing the beneficiary thereof to the Master Servicer (in care of the Trustee, as titled above) that may be required in order for the Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents or BWP Trust Subordinate Companion Loan documents, as applicable) and the applicable Mortgage Loan Seller shall be deemed to have satisfied the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) by delivering with respect to any letter(s) of credit a copy thereof to the Custodian together with an officer’s certificate of the applicable Mortgage Loan Seller certifying that such document has been delivered to the issuing bank for reissuance or an Officer’s Certificate from the Master Servicer certifying that it holds the letter(s) of credit pursuant to this Section 2.01(b), one of which shall be delivered to the Custodian on the Closing Date. If a letter of credit referred to in the previous sentence is not in a form that would allow the Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents or BWP Trust Subordinate Companion Loan documents, as applicable, the applicable Mortgage Loan Seller shall deliver the appropriate assignment or amendment documents (or copies of such assignment or amendment documents if the related Mortgage Loan Seller has submitted the originals to the related issuer of such letter of credit for processing) to the Custodian within thirty (30) days of the Closing Date. If not otherwise paid by the related Mortgagor, the applicable Mortgage Loan Seller shall pay any costs of assignment or amendment of such letter(s) of credit required in order for the Master Servicer to draw on such letter(s) of credit on behalf of the Trust and shall cooperate with the reasonable requests of the Master Servicer in connection with effectuating a draw under any such letter of credit prior to the date such letter of credit is assigned or amended in order that it may be drawn by the Master Servicer on behalf of the Trust.

 

(c)          Pursuant to each Mortgage Loan Purchase Agreement, except in the case of a Non-Serviced Mortgage Loan, the related Mortgage Loan Seller is required at its sole cost and expense, to itself, or to engage a third party to, put each Assignment of Mortgage, each assignment of Assignment of Leases and each assignment of each UCC Financing Statement (collectively, the “Assignments” and, individually, “Assignment”) relating to the Mortgage Loans (and the BWP Trust Subordinate Companion Loan, if applicable) 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 and the BWP Trust Subordinate Companion Loan 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

 

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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. 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 (xi) 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 and/or BWP Trust Subordinate Companion Loan, as applicable, against sale, further assignment, satisfaction or discharge by the related Mortgage Loan Seller, the Master Servicer, the Special Servicer, any Sub-Servicer or the Depositor.

 

(d)          All documents and records in the Depositor’s or the applicable Mortgage Loan Seller’s possession relating to the Mortgage Loans and the BWP Trust Subordinate Companion Loan (including, in each case, financial statements, operating statements and any

 

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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 and BWP Trust Subordinate Companion Loan, together with copies of all documents in each Mortgage File, shall be delivered by the Depositor or the applicable Mortgage Loan Seller to the Master Servicer within five (5) Business Days after the Closing Date and shall be held by the Master Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders (including, with respect to the BWP Trust Subordinate Companion Loan, the Holders of the Class BWP Certificates) (and as holder of the Uncertificated Lower-Tier 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 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 and the BWP Trust Subordinate Companion 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 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 “The Roosevelt New Orleans Waldorf Astoria”, “Comfort Suites and Fairfield Inn Woodbridge”, “Doubletree Racine”, “Holiday Inn Express & Suites – Chicago West”, “Hampton Inn Cleveland Airport” and “Ramada Houston Airport” on the Mortgage Loan Schedule, which are each subject to a franchise or management agreement with a related comfort letter in favor of the respective Mortgage Loan Seller that requires notice to or request of the related franchisor to transfer or assign any related comfort letter to the Trust or otherwise have a new comfort letter issued in the name of the Trust, the related Mortgage Loan Seller or its designee will be required to provide any such required notice or make any such required request to the related franchisor (with a copy of such notice or request to the Master Servicer) within 45 days of the Closing Date (or any shorter period if required by the applicable comfort letter), and the Master Servicer shall use reasonable efforts in accordance with the Servicing Standard to acquire such replacement comfort letter, if necessary (or to acquire any such new document or acknowledgement as may be contemplated under the existing comfort letter).

 

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Section 2.02          Acceptance by Trustee. (a) The Trustee, by the execution and delivery of this Agreement (1) acknowledges receipt by it or a 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 BWP Trust Subordinate Companion Loan and of all other assets included in the Trust Fund and (2) declares (a) that it or a 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, 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, with respect to any original document in the Mortgage File for a Serviced Whole Loan, for any present or future Companion Holder (and for the benefit of the Trustee as holder of the Uncertificated Lower-Tier 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 of the Closing Date, the Custodian, shall review the Mortgage Loan documents and the BWP Trust Subordinate Companion 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 each of the Rating Agencies, the Depositor, the Master Servicer, the Special Servicer, the Directing Certificateholder and the applicable Mortgage Loan Seller (as to each Mortgage Loan and BWP Trust Subordinate Companion Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan or BWP Trust Subordinate Companion 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), (ix) through (xiii), (xv) and (xvi) (or, with respect to clause (xvi), a copy of such letter of credit and the required Officer’s Certificate), 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 or BWP Trust Subordinate Companion 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 and BWP Trust Subordinate Companion Loan listed on the Custodial Exception Report, the Custodian shall specifically identify such Mortgage Loan or BWP Trust Subordinate Companion 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 and the BWP Trust Subordinate Companion Loan documents received subsequent to the Closing Date; and, on

 

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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 Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Directing Certificateholder and the applicable Mortgage Loan Seller (as to each Mortgage Loan and BWP Trust Subordinate Companion Loan listed on the Mortgage Loan Schedule (other than any related Mortgage Loan or BWP Trust Subordinate Companion Loan as to which a Liquidation Event has occurred) or any related Mortgage Loan or BWP Trust Subordinate Companion 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), (ix) through (xiii), (xv) and (xvi), 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 or BWP Trust Subordinate Companion 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 Defect in any of the documents specified in clauses (ii) through (v), (viii), (ix), (xi) and (xii) in the definition of “Mortgage File”, which 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 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 only prior to the occurrence and continuance of a Control Event), and the Special Servicer may, in accordance with the Servicing Standard, after the occurrence and during the continuance of a Control Event, permit the related Mortgage Loan Seller in lieu of repurchasing or substituting for the related Mortgage Loan, to deposit with the Master Servicer an amount, to be held in trust in a segregated Eligible Account (which may be a sub-account of the Certificate 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 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 Master Servicer (i) until the date on which the Custodian determines and notifies the Master Servicer that such Defect has been cured or the related Mortgage Loan is no longer part of the Trust Fund, at which time the 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 Master Servicer or the 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 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

 

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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 6 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 Master Servicer in accordance with this Section 2.02(d), the Master Servicer shall, to the extent necessary, draw on the letter of credit and deposit the proceeds of such draw, into the Certificate 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 Certificate Account 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, which, together with any reimbursement from the BWP Trust Subordinate Companion Loan REMIC or 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), (viii), (xiv) and (xvii) through (xxv) 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 (or the BWP Trust Subordinate Companion Loan, as applicable) 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 (ix) 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 (or BWP Trust Subordinate Companion Loan, as applicable)

 

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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 (or BWP Trust Subordinate Companion Loan, as applicable) 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 new 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 Master Servicer, the Special Servicer, 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, commencing with the quarter ending September 30, 2015 until all Defects are corrected) by providing a Custodial Exception Report setting forth for each affected Mortgage Loan (or affected BWP Trust Subordinate Companion Loan, as applicable), 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 the Master Servicer or the Special Servicer (i) receives any request or demand for repurchase or replacement of a Mortgage Loan because of a breach of or alleged breach of a representation or warranty or a Defect (any such request or demand for repurchase or replacement, a “Repurchase Request”, and the Master Servicer or the Special Servicer, as applicable, to the extent it receives a Repurchase Request, the “Repurchase Request Recipient” with respect to such Repurchase Request); or (ii) receives any withdrawal of a Repurchase Request by the Person making such Repurchase Request or any rejection of a Repurchase Request (or such a Repurchase Request is forwarded to the Master Servicer or 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 Repurchase Request or withdrawal or rejection of a 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 Repurchase Request is received by the Repurchase Request Recipient or the date any withdrawal of the Repurchase Request is received by the Repurchase Request Recipient, as applicable, (iii) if known, the basis for the Repurchase Request (as asserted in the Repurchase Request) and (iv) a statement from the Repurchase Request Recipient as to whether it currently plans to pursue such Repurchase Request.

 

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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 Repurchase Request that is the subject of a 15Ga-1 Notice.

 

In the event that the Depositor, the Trustee, the Certificate Administrator, the Certificate Registrar or the Custodian receives a Repurchase Request, such party shall promptly forward or otherwise provide written notice of such Repurchase Request to the Master Servicer, if relating to a Non-Specially Serviced Mortgage Loan, or to the Special Servicer, if relating to a Specially Serviced Mortgage Loan or REO Property, and include the following statement in the related correspondence: “This is a “Repurchase Request” under Section 2.02 of the Pooling and Servicing Agreement relating to the JPMBB Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates Series 2015-C31 requiring action by you as the “Repurchase Request Recipient” thereunder.” Upon receipt of such Repurchase Request by the Master Servicer or the Special Servicer, as applicable, such party shall be deemed to be the Repurchase Request Recipient in respect of such Repurchase Request, and such party shall comply with the procedures set forth in this Section 2.02(g) with respect to such 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, the Certificate Administrator, the Certificate Registrar or the Custodian receives notice or has knowledge of a withdrawal or a rejection of a Repurchase Request of which notice has been previously received or given, and such notice was not received from or copied to the Master Servicer or the Special Servicer, then such party shall give notice of such withdrawal or rejection to the Master Servicer or the Special Servicer, as applicable. Any such notice received by the Trustee, the Certificate Administrator, the Certificate Registrar 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 (or BWP Trust Subordinate Companion Loan, as applicable) is repurchased or replaced pursuant to Section 2.03 of this Agreement, the Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) or Special Servicer (with respect to Specially Serviced Mortgage Loans) shall promptly notify the Depositor of such repurchase or replacement.

 

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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 Delaware, 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 and the BWP Trust Subordinate Companion Loan 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 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 BWP Trust Subordinate Companion Loan 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 and the BWP Trust Subordinate Companion Loan with the full right to transfer the Mortgage Loans and the BWP Trust Subordinate Companion Loan to the Trust, and the Mortgage Loans and the BWP Trust Subordinate Companion Loan have been validly transferred to the Trust.

 

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(b)          If any Certificateholder, the Directing Certificateholder, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee discovers (without implying any duty of such person to make, or to attempt to make, such a discovery) or receives notice alleging a Defect in any Mortgage File or a breach of any representation or warranty with respect to a Mortgage Loan set forth in Section 6(c) of the related Mortgage Loan Purchase Agreement (with respect to such Mortgage Loan, 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, such Certificateholder, the Directing Certificateholder, the Master Servicer, the Special Servicer, the Trustee or the Certificate Administrator, as applicable, shall give prompt written notice of such Defect or Breach, as the case may be, to the Depositor, the Master Servicer, the Special Servicer, the applicable Mortgage Loan Seller, the Trustee, the Certificate Administrator, the Senior Trust Advisor and, prior to the occurrence of a Consultation Termination Event, the Directing Certificateholder, and the Master Servicer (if the related Mortgage Loan is a Non-Specially Serviced Mortgage Loan) or Special Servicer (if the related Mortgage Loan is a Specially Serviced Mortgage Loan), as applicable, 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 or (ii) in the case of a Defect or Breach 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) the applicable Mortgage Loan Seller’s discovery of such Defect or Breach or (y) discovery of such Breach of Defect by any other party, provided that the related Mortgage Loan Seller receives prompt written notice thereof (such ninety (90) day period, the “Initial Cure Period”), (A) cure such Defect or Breach, as the case may be, in all material respects, at such Mortgage Loan Seller’s own expense, including reimbursement of any related reasonable additional Trust Fund expenses reasonably incurred by any party to this Agreement, (B) repurchase the affected Mortgage Loan or BWP Trust Subordinate Companion Loan (or any related 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 Civic Opera Building Mortgage Loan, The Roosevelt New Orleans Waldorf Astoria Mortgage Loan, the Sunbelt Portfolio Mortgage Loan, the Brunswick Portfolio Mortgage Loan or the BWP Trust Subordinate Companion Loan, as applicable, for which no substitution will be permitted) for such affected Mortgage Loan or REO Loan (excluding any related Serviced Companion Loan, if applicable) (provided that in no event shall any such substitution occur on or after the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Certificate 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 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 (ix) of the definition of “Mortgage File” by a date not later than eighteen (18) months following the Closing Date, if such Breach or 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 Breach or Defect within the Initial Cure Period, the applicable Mortgage Loan Seller shall

 

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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 Civic Opera Building Mortgage Loan, The Roosevelt New Orleans Waldorf Astoria Mortgage Loan, the Sunbelt Portfolio Mortgage Loan, the Brunswick Portfolio Mortgage Loan or the BWP Trust Subordinate Companion Loan, as applicable, 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 Master Servicer, the Special Servicer, the Senior Trust 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 Breach or 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 Breach or 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 Master Servicer for deposit into the Certificate Account. If any Breach 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 Fund (by wire transfer of immediately available funds) the reasonable amount of any such costs and expenses incurred by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Trust Fund that are the basis of such Breach and have not been reimbursed by the related Mortgagor; provided, however, that in the event any such costs and expenses exceed $10,000, the related Mortgage Loan Seller shall have the option to either repurchase or substitute for the related Mortgage Loan as provided above or pay such costs and expenses. 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 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. Monthly Payments due with respect to each Qualified Substitute Mortgage Loan (if any) after the related Due Date in the month of substitution, and

 

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Monthly Payments due with respect to each Mortgage Loan being repurchased or replaced after the related Cut-off Date and received by the Master Servicer or the 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. Monthly 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 Monthly Payments due with respect to each Mortgage Loan being repurchased or replaced and received by the Master Servicer or the 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 the Master 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 Defect or Breach shall relieve the applicable Mortgage Loan Seller of its obligation to repurchase 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 Breach or Defect and (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 Defect or Breach (knowledge shall not be deemed to exist by reason of the Custodial Exception Report) and such delay precludes such Mortgage Loan Seller from curing such Defect or Breach. Notwithstanding the foregoing, with respect to any Defect or other matter relating to the BWP Trust Subordinate Companion Loan which (i) causes the BWP Trust Subordinate Companion 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 BWP Trust Subordinate Companion Loan to be treated as a qualified mortgage) or (ii) would otherwise cause any Trust REMIC to fail to qualify as a REMIC, or result in the imposition of any tax on any Trust REMIC, following 90 days after (x) the applicable Mortgage Loan Seller’s discovery of such Defect or Breach or (y) discovery of such Breach of Defect by any other party, provided that the related Mortgage Loan Seller receives prompt written notice thereof, if the same is not cured, then (i) the Custodian shall, upon receipt of a Request for Release substantially in the form of Exhibit E from the Master Servicer, release or cause to be released to the Subordinate Loan-Specific Directing Certificateholder or any designee thereof, the Mortgage Note for the BWP Trust Subordinate Companion Loan and the Custodian or the Trustee shall execute all assignments, endorsements and other instruments furnished to it by the Subordinate Loan-Specific Directing Certificateholder as shall be necessary to effectuate transfer of such Mortgage Note, (ii) the BWP Trust Subordinate Companion Loan REMIC shall be liquidated in accordance with the procedures set forth in Section 9.02 and (iii) neither of the Master Servicer nor the Special Servicer shall have any further obligation to service the BWP Trust Subordinate Companion Loan hereunder.

 

(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 will cause a document in the Mortgage File to be deemed to have a “Defect” and to be conclusively presumed to materially and adversely affect the interests of Certificateholders in a Mortgage Loan or BWP Trust Subordinate Companion Loan (but solely with respect to clause (a)) and to be deemed to materially and adversely affect the interest of the Certificateholders in and the value of a Mortgage Loan or BWP Trust Subordinate Companion Loan: (a) the absence from the Mortgage File of the original signed Mortgage Note,

 

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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 (ix) 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 (except as permitted under Section 2.01(b)); 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. 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 (ix) 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 Defect or Breach 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 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 Defect against a Mortgage Loan Seller pursuant to Section 6(e) 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 or a repurchase of the BWP Trust Subordinate Companion Loan contemplated by this Section 2.03, the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer shall each tender to the applicable Mortgage Loan Seller, upon delivery to each of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the 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 or BWP Trust Subordinate Companion Loan possessed by each of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer (other than attorney-client

 

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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 6 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 or BWP Trust Subordinate Companion Loan (including property acquired in respect thereof and proceeds of any insurance policy with respect thereto) and the related Mortgage Loan documents.

 

(e)          Section 6(e) 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 Master Servicer or the Special Servicer, with respect to any Defect in a Mortgage File or any Breach of any representation or warranty with respect to a Mortgage Loan or BWP Trust Subordinate Companion Loan set forth in or required to be made pursuant to Section 6 of any of the Mortgage Loan Purchase Agreements; provided, however, that the foregoing shall in no way limit the ability of the Master Servicer, Special Servicer or Trustee to take any action against Starwood or RTI, to the extent provided for pursuant to the related Mortgage Loan Purchase Agreement, including, without limitation, pursuant to Sections 20 and 21 thereof or RAIT Financial Trust to the extent provided for pursuant to the RAIT Financial Trust Guaranty.

 

(f)          The Master Servicer (in the case of Non-Specially Serviced Mortgage Loans) or the Special Servicer (in the case of Specially Serviced Mortgage Loans) shall, for the benefit of the Certificateholders and the Trustee (as holder of the Uncertificated Lower-Tier 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 Master Servicer or the Special Servicer would require were it, in its individual capacity, the owner of the affected Mortgage Loan(s) or BWP Trust Subordinate Companion Loan. Any costs incurred by the Master Servicer or the 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, be deemed to be Servicing Advances to the extent not otherwise provided for herein. The Master Servicer or the Special Servicer, as applicable, 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)(viii) herein out of general collections on the Mortgage Loans on deposit in the Certificate 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, 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

 

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to the rights of the Trustee and the Trust Fund 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 Fund, the Master Servicer and the Special Servicer 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 Servicer, and unpaid or unreimbursed expenses of the Trustee, the Certificate Administrator, the Trust Fund, the Master Servicer or the Special Servicer allocable to such Mortgage Loan. The Master Servicer or, with respect to a Specially Serviced Mortgage Loan, the Special Servicer, 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 the Master Servicer or, with respect to a Specially Serviced Mortgage Loan, the Special Servicer, determines in the exercise of its sole discretion consistent with the Servicing Standard that such actions by it will not impair the Master Servicer’s and/or the Special Servicer’s collection or recovery of principal, interest and other sums due with respect to the related Mortgage Loan that would otherwise be payable to the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator and the Certificateholders pursuant to the terms of this Agreement; provided, further, that the Master Servicer or, with respect to a Specially Serviced Mortgage Loan, the 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 Defect or Breach does not constitute a Defect or Breach, as the case may be, as to any other Crossed Underlying Loan in the related Crossed Mortgage Loan Group (without regard to this paragraph), then the applicable Defect or Breach, as the case may be, will be deemed to constitute a Defect or Breach, as the case may be, as to any other Crossed Underlying Loan in the related Crossed Mortgage Loan Group for purposes of this paragraph, and the related Mortgage Loan Seller will be required to repurchase or substitute for such other Crossed Underlying Loan(s) in the related Crossed Mortgage Loan Group as provided in Section 2.03(b) unless such other Crossed Underlying Loans satisfy the Crossed Underlying Loan Repurchase Criteria. In the event that the remaining Crossed Underlying Loans in such Crossed Mortgage Loan Group satisfy the aforementioned criteria, the applicable Mortgage Loan Seller may elect either to repurchase or substitute for only the affected Crossed Underlying Loan(s) as to which the related Breach or Defect exists or to repurchase or substitute for all of the Crossed Underlying Loans in the related Crossed Mortgage Loan Group. Any reserve or other cash collateral or letters of credit securing the Crossed Underlying Loans shall be allocated among the related Crossed Underlying Loans in accordance with the related Mortgage Loan documents or otherwise on a pro rata basis based upon their outstanding principal balances. Except as provided in this Section 2.03(h) and Section 2.03(i), all other terms of the related Mortgage Loans shall remain in full force and effect without any modification thereof.

 

(i)          Notwithstanding the foregoing, if the related Mortgage provides for the partial release of one or more of the Crossed Underlying Loans, the Depositor may cause the related Mortgage Loan Seller to repurchase only that Crossed Underlying Loan required to be

 

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repurchased pursuant to this Section 2.03, pursuant to the partial release provisions of the related Mortgage; provided, however, that (i) the remaining related Crossed Underlying Loan(s) fully comply with the terms and conditions of the related Mortgage, this Agreement and the related Mortgage Loan Purchase Agreement, including the Crossed Underlying Loan Repurchase Criteria, (ii) in connection with such partial release, the related Mortgage Loan Seller obtains an Opinion of Counsel (at such Mortgage Loan Seller’s expense) to the effect that the contemplated action will not cause any Trust REMIC to fail to qualify as a REMIC, or result in the imposition of any tax on any Trust REMIC and (iii) in connection with such partial release, the related Mortgage Loan Seller delivers or causes to be delivered to the Custodian original modifications to the Mortgage prepared and executed in connection with such partial release.

 

(j)          With respect to any Crossed Underlying Loan, to the extent that the applicable Mortgage Loan Seller is required to repurchase or substitute for such Crossed Underlying Loan in the manner prescribed in Section 2.03(g) while the Trustee continues to hold any other Crossed Underlying Loans in the related Crossed Mortgage Loan Group, the applicable Mortgage Loan Seller and the Master Servicer on behalf of the Trustee, as assignee of the Depositor, will, as set forth in the related Mortgage Loan Purchase Agreement, forbear from enforcing any remedies against the other’s Primary Collateral but each will be permitted to exercise remedies against the Primary Collateral securing its respective related Mortgage Loans, including with respect to the Trustee, the Primary Collateral securing the Mortgage Loans still held by the Trustee, so long as such exercise does not materially impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of the remedies by one party would materially impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Crossed Underlying Loans held by such party, then both parties have agreed in the related Mortgage Loan Purchase Agreement to forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Mortgage Loan can be modified in a manner that complies with the related Mortgage Loan Purchase Agreement to remove the threat of material impairment as a result of the exercise of remedies.

 

Section 2.04          Execution of Certificates; Issuance of Uncertificated Lower-Tier Interests. The Trustee hereby acknowledges the assignment to it of the Mortgage Loans and the BWP Trust Subordinate Companion Loan and, subject to Section 2.01 and 2.02, the delivery to the Custodian of the Mortgage Files and a fully executed original counterpart of each of the Mortgage Loan Purchase Agreements, together with the assignment to it of all of the other assets included in the BWP Trust Subordinate Companion Loan REMIC, the Lower-Tier REMIC and the Grantor Trust. Concurrently with such assignment and delivery, and in exchange for the Mortgage Loans (other than Excess Interest), the BWP Trust Subordinate Companion Loan and the other assets comprising the BWP Trust Subordinate Companion Loan REMIC and the Lower-Tier REMIC, receipt of which is hereby acknowledged, the Trustee (i) acknowledges the issuance of the Class BWP Certificates and the Class BWP-R Interest to the Depositor in exchange for the assets comprising the BWP Trust Subordinate Companion Loan REMIC; (ii) acknowledges the issuance of the Uncertificated Lower-Tier Interests and the Class LR Interest to the Depositor; (iii) acknowledges the creation of the Grantor Trust (as described in Section 2.05 below); (iv) acknowledges the contribution by the Depositor of the Uncertificated Lower-Tier Interests to the Upper-Tier REMIC; and (v) immediately thereafter, in exchange for the Uncertificated Lower-Tier Interests and $200 deposit by the Depositor in respect of the Class

 

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X-B Certificates and the Class X-C Certificates (and together with, in the case of the Class BWP Certificates, the Depositor’s interest in the BWP Trust Subordinate Companion Loan REMIC and, in the case of the Class Z Certificates, the Depositor’s interest in the Grantor Trust), the Trustee acknowledges that it has caused the Certificate Administrator to issue the Class UR Interest and has caused the Certificate Registrar to execute and caused the Authenticating Agent to authenticate and to deliver to or upon the order of the Depositor, the Regular Certificates, the Class Z Certificates, the Class BWP Certificates and the Class R Certificates, and the Depositor hereby acknowledges the receipt by it or its designees, of such Certificates in authorized Denominations evidencing the entire beneficial ownership of the Upper-Tier REMIC (and additionally, (x) in the case of the Class BWP Certificates (and the Class BWP-R Interest), the beneficial ownership of the BWP Trust Subordinate Companion Loan REMIC, (y) in the case of the Class Z Certificates, the beneficial ownership of the respective portion of the Grantor Trust, and (z) in the case of the Class R Certificates, the Class BWP-R Interest, the Class LR Interest and the Class UR Interest); and (vi) the Trustee acknowledges that it has caused the Certificate Administrator to issue the Class EC Certificates and has caused the Certificate Registrar to execute and cause the Authenticating Agent to deliver to or upon the order of the Depositor such Certificates, and the Depositor hereby acknowledges the receipt by it, or its designees, of such Certificates in authorized denominations, evidencing beneficial ownership of the respective portion of the Grantor Trust.

 

Section 2.05          Creation of the Grantor Trust. The Class Z Certificates are hereby designated as undivided beneficial interests in the portion of the Trust Fund consisting of Excess Interest and the Excess Interest Distribution Account and proceeds thereof and the Class EC Certificates are hereby designated as undivided beneficial interests in the portion of the Trust Fund consisting of the uncertificated regular interests in the Upper-Tier REMIC represented by any Exchangeable Certificates that have been exchanged and converted for the Class EC Certificates and the Class EC Distribution Account, which portions shall be treated as a grantor trust within the meaning of subpart E, part I of subchapter J of the Code. For federal income tax purposes, the regular interests in the Upper-Tier REMIC represented by the classes of Exchangeable Certificates (or portions thereof) that have been exchanged for Class EC Certificates shall be deemed to continue to be outstanding and represented by the Class EC Certificates, and upon a reconversion of Class EC Certificates for Exchangeable Certificates, shall again be deemed to be represented by such Exchangeable Certificates.

 

[End of Article II]

 

Article III

ADMINISTRATION AND
SERVICING OF THE TRUST FUND

 

Section 3.01          Master Servicer To Act as Master Servicer; Special Servicer To Act as Special Servicer; Administration of the Mortgage Loans, the Serviced Companion Loans, the BWP Trust Subordinate Companion Loan and REO Properties. (a) Each of the Master Servicer and Special Servicer shall diligently service and administer the Mortgage Loans (other than any Non-Serviced Mortgage Loan), the Serviced Whole Loans, the BWP Trust Subordinate Companion Loan and the REO Properties (other than any REO Property related to a Non-

 

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Serviced Mortgage Loan) it is obligated to service pursuant to applicable law, this Agreement and the Mortgage Loan documents on behalf of the Trust and in the best interests of and for the benefit of the Certificateholders and, (i) in the case of the Serviced Companion Loans, the Companion Holders and the Trustee (as holder of the Uncertificated Lower-Tier Interests) and (ii) in the case of the BWP Trust Subordinate Companion Loan, the Holders of the Class BWP Certificates and the Trustee, in each case, as a collective whole, taking into account the subordinate or pari passu nature of such Companion Loans or BWP Trust Subordinate Companion Loan, as the case may be (as determined by the Master Servicer or Special Servicer, as the case may be, in its reasonable judgment), in accordance with applicable law, the terms of this Agreement (and, with respect to each Serviced Whole Loan, BWP Trust Subordinate Companion Loan, Trust AB Whole Loan or any Mortgage Loan with related mezzanine debt, the related Intercreditor Agreement) and the terms of the respective Mortgage Loans and, if applicable, the related Companion Loan or BWP Trust Subordinate Companion Loan, as the case may be, taking into account the subordinate or pari passu nature of such Companion Loan or BWP Trust Subordinate Companion Loan, as the case may be. With respect to each Serviced Whole Loan or Trust AB Whole Loan, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the related Intercreditor Agreement shall control; provided that in no event shall the Master Servicer or the Special Servicer, as the case may be, take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause the Master Servicer or the Special Servicer, as the case may be, to violate the Servicing Standard or the REMIC Provisions. To the extent consistent with the foregoing, the Master Servicer and the Special Servicer shall service the Mortgage Loans (other than any Non-Serviced Mortgage Loan), the Serviced Companion Loans and the BWP Trust Subordinate Companion Loan in accordance with the higher of the following standards of care: (1) in the same manner in which, and with the same care, skill, prudence and diligence with which the Master Servicer or the Special Servicer, as the case may be, services and administers similar mortgage loans for other third party portfolios and (2) the same care, skill, prudence and diligence with which the Master Servicer or the Special Servicer, as the case may be, services and administers similar mortgage loans owned by the Master Servicer or the Special Servicer, as the case may be, with a view to the maximization of timely recovery of principal and interest on a net present value basis on such Mortgage Loans or such Specially Serviced Mortgage Loans and any related Serviced Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, and the best interests of the Trust and the Certificateholders (and in the case of a Serviced Whole Loan and Trust AB Whole Loan, any related Companion Holder or BWP Trust Subordinate Companion Loan, taking into account the subordinate or pari passu nature of the related Companion Loan or BWP Trust Subordinate Companion Loan, as applicable), as determined by the Master Servicer or the Special Servicer, as the case may be, in its reasonable judgment, in either case giving due consideration to the customary and usual standards of practice of prudent institutional, multifamily and commercial mortgage loan servicers, but without regard to any conflict of interest arising from: (i) any relationship that the Master Servicer, the Special Servicer or any Affiliate of the Master Servicer or the Special Servicer may have with any Mortgagor or any Affiliate of such Mortgagor, any Mortgage Loan Seller or any other parties to this Agreement; (ii) the ownership of any Certificate, Companion Loan, or mezzanine loan by the Master Servicer, the Special Servicer or any Affiliate of the Master Servicer or the Special Servicer, as applicable; (iii) any obligation to make Advances; (iv) the adequacy of the Master Servicer’s or the Special Servicer’s, as the case may be, right to receive

 

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compensation for its services and reimbursement for its costs hereunder or with respect to any particular transaction; (v) the ownership, servicing or management for others of any other mortgage loans, subordinate interests, subordinate debt, mezzanine loans or mortgaged properties by the Master Servicer or the Special Servicer; (vi) any option to purchase any Mortgage Loan, the related Companion Loan or BWP Trust Subordinate Companion Loan it may have; and (vii) any other debt the Master Servicer or the Special Servicer or any of its Affiliates has extended to any Mortgagor or any of its Affiliates (the foregoing, collectively referred to as the “Servicing Standard”).

 

The Master Servicer and the Special Servicer shall act in accordance with the Servicing Standard with respect to any action required to be taken regarding the Non-Serviced Mortgage Loan pursuant to their obligations under this Agreement.

 

Without limiting the foregoing, subject to Section 3.21, the Special Servicer shall be obligated to service and administer (i) any Mortgage Loans (other than the Non-Serviced Mortgage Loan), any related Serviced Companion Loans and BWP Trust Subordinate Companion Loan as to which a Servicing Transfer Event has occurred and is continuing (each, a “Specially Serviced Mortgage Loan”) or as otherwise provided herein with respect to Non-Specially Serviced Mortgage Loans in connection with any Major Decision and (ii) any REO Properties (other than the Non-Serviced Mortgaged Properties); provided that the Master Servicer shall continue to receive payments and make all calculations, and prepare, or cause to be prepared, all reports, required hereunder with respect to the Specially Serviced Mortgage Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans) as if no REO Acquisition had occurred, and to render such services with respect to such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, however, that the Master Servicer shall not be liable for failure to comply with such duties insofar as such failure results from a failure of the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. The Master Servicer, in its capacity as Master Servicer, will not have any responsibility for the performance by the Special Servicer, in its capacity as Special Servicer, of its duties under this Agreement. The Special Servicer, in its capacity as Special Servicer, will not have any responsibility for the performance by the Master Servicer, in its capacity as Master Servicer, of its duties under this Agreement. Each Mortgage Loan, any related Serviced Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, that becomes a Specially Serviced Mortgage Loan shall continue as such until satisfaction of the conditions specified in Section 3.21(a). Without limiting the foregoing, subject to Section 3.21, the Master Servicer shall be obligated to service and administer any Non-Specially Serviced Mortgage Loan, any related Serviced Companion Loan or BWP Trust Subordinate Companion Loan. The Special Servicer shall make the property inspections, use its reasonable efforts to collect the financial statements, budgets, operating statements and rent rolls and forward to the Master Servicer the reports in respect of the related Mortgaged Properties with respect to Specially Serviced Mortgage Loans in accordance with Section 3.12. After notification to the Master Servicer, the Special Servicer may contact the Mortgagor of any Non-Specially Serviced Mortgage Loan if efforts by the Master Servicer to collect required financial information have been unsuccessful or any other issues remain unresolved. Such contact shall be coordinated through and with the cooperation of the Master

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Servicer. No provision herein contained shall be construed as an express or implied guarantee by the Master Servicer or the Special Servicer of the collectability or recoverability of payments on the Mortgage Loans, any related Serviced Companion Loan or BWP Trust Subordinate Companion Loan or shall be construed to impair or adversely affect any rights or benefits provided by this Agreement to the Master Servicer or the Special Servicer (including with respect to Servicing Fees, Special Servicing Fees or the right to be reimbursed for Advances and interest accrued thereon). Any provision in this Agreement for any Advance by the Master Servicer or the Trustee is intended solely to provide liquidity for the benefit of the Certificateholders and not as credit support or otherwise to impose on any such Person the risk of loss with respect to one or more of the Mortgage Loans, any related Serviced Companion Loans or BWP Trust Subordinate Companion Loan. No provision hereof shall be construed to impose liability on the Master Servicer or the Special Servicer for the reason that any recovery to the Certificateholders in respect of a Mortgage Loan at any time after a determination of present value recovery is less than the amount reflected in such determination.

 

(b)          Subject only to the Servicing Standard and the terms of this Agreement (including, without limitation, Section 6.07 hereof) and of the respective Mortgage Loans, any related Serviced Companion Loans or BWP Trust Subordinate Companion Loan and any related Intercreditor Agreement, if applicable, and applicable law, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone or, in the case of the Master Servicer, subject to Section 3.22, through one or more Sub-Servicers, to do or cause to be done any and all things in connection with such servicing and administration for which it is responsible which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name (or in the name of the Trustee and, if applicable, the related Serviced Companion Noteholder), is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders (including, in the case of the BWP Trust Subordinate Companion Loan, the Holders of the Class BWP Certificates) (and, with respect to a Serviced Companion Loan, the related Serviced Companion Noteholder) and the Trustee or any of them, with respect to each Mortgage Loan, any related Serviced Companion Loan or BWP Trust Subordinate Companion Loan, it is obligated to service under this Agreement: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by the related Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral, and shall, from time to time, execute and/or deliver such financing statements, continuation statements and other documents or instruments as necessary to maintain the lien created by the related Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) subject to Sections 3.08, 3.20 and 6.07, any and all modifications, waivers, amendments or consents to, under or with respect to any documents contained in the related Mortgage File; (iii) any and all instruments of satisfaction or cancellation, pledge agreements and other documents in connection with a defeasance, or of partial or full release or discharge, and all other comparable instruments; and (iv) any or all complaints or other pleadings to initiate and/or to terminate any action, suit or proceeding on behalf of the Trust (in their representative capacities (except as set forth below in this paragraph). The Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans) shall provide to the Mortgagor related to such Mortgage Loans or BWP Trust Subordinate Companion Loan that it is servicing any reports required to be provided to them pursuant to the related Mortgage Loan

 

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documents. Subject to Section 3.10, the Trustee shall (i) on the Closing Date, furnish to the Master Servicer and the Special Servicer original powers of attorney in the form of Exhibit R-1 or Exhibit R-2 attached hereto, as applicable (or such other form as mutually agreed to by the Trustee and the Master Servicer or the Special Servicer, as applicable) and (ii) upon request, furnish, or cause to be furnished, to the Master Servicer or the Special Servicer any powers of attorney substantially in the form of Exhibit R-1 or Exhibit R-2 attached hereto, as applicable (or such other form as mutually agreed to by the Trustee and the Master Servicer or the Special Servicer, as applicable) and other documents necessary or appropriate to enable the Master Servicer or the Special Servicer, as the case may be, to carry out its servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held responsible or liable for any acts of the Master Servicer or the Special Servicer, or for any negligence with respect to, or misuse of, any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, the Master Servicer or the Special Servicer, as the case may be, shall not, without the Trustee’s written consent: (i) initiate any action, suit or proceeding solely under the Trustee’s name without indicating the Master Servicer’s or the Special Servicer’s, as the case may be, representative capacity (unless prohibited by any requirement of the applicable jurisdiction in which any such action, suit or proceeding is brought and if so prohibited, in the manner required by such jurisdiction (provided that the Master Servicer or Special Servicer, as applicable, shall then provide five (5) Business Days’ written notice to the Trustee of the initiation of such action, suit or proceeding (or such shorter time period as is reasonably required in the judgment of the Master Servicer or the Special Servicer, as applicable, made in accordance with the Servicing Standard) prior to filing such action, suit or proceeding), and shall not be required to obtain the Trustee’s consent or indicate the Master Servicer’s or Special Servicer’s, as applicable, representative capacity)) or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be required to be registered to do business in any state.

 

(c)          To the extent the Master Servicer is permitted pursuant to the terms of the related Mortgage Loan documents, Companion Loan documents or BWP Trust Subordinate Companion Loan documents (including any related Intercreditor Agreement) to exercise its discretion with respect to any action which requires Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) or the Class BWP Certificates (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 3.30), the Master Servicer shall require the costs of such Rating Agency Confirmation to be borne by the related Mortgagor. To the extent the terms of the related Mortgage Loan documents, Companion Loan documents or BWP Trust Subordinate Companion Loan documents (including any related Intercreditor Agreement) require the Mortgagor to bear the costs of any Rating Agency Confirmation or confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) or Class BWP Certificates (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 3.30), the Master Servicer shall not waive the requirement that such costs and expenses be borne by the related Mortgagor. To the extent that the terms of the related

 

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Mortgage Loan documents or Companion Loan documents (including any related Intercreditor Agreement) are silent as to who bears the costs of any Rating Agency Confirmation or confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) or Class BWP Certificates (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 3.30), the Master Servicer shall use reasonable efforts to have the Mortgagor bear such costs and expenses. The Master Servicer shall not be responsible for the payment of such costs and expenses out of pocket other than as a Servicing Advance.

 

(d)          The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent.

 

(e)          The Master Servicer shall, to the extent permitted by the related Mortgage Loan documents, any related Companion Loan documents or BWP Trust Subordinate Companion Loan documents, and consistent with the Servicing Standard, permit Escrow Payments to be invested only in Permitted Investments.

 

(f)          Within sixty (60) days (or such shorter time period as is required by the terms of the applicable Mortgage Loan documents) after the later of (i) the receipt thereof by the Master Servicer and (ii) the Closing Date, (x) the applicable Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement shall notify each provider of a letter of credit for each Mortgage Loan identified as having a letter of credit on the Mortgage Loan Schedule, that the Master Servicer (in care of the Trustee, as titled in Section 2.01(b)) for the benefit of the Certificateholders and any related Companion Holders shall be the beneficiary under each such letter of credit and (y) the Master Servicer shall notify each lessor under a Ground Lease for each Mortgage Loan identified as subject to a leasehold interest on the Mortgage Loan Schedule, that the Trust is the leasehold mortgagee and that the Master Servicer or the Special Servicer shall service the related Mortgage Loan for the benefit of the Certificateholders. If a letter of credit is required to be drawn upon earlier than the date the applicable Mortgage Loan Seller has notified the provider of such letter of credit pursuant to clause (x) of the immediately preceding sentence, such Mortgage Loan Seller shall cooperate with the reasonable requests of the Master Servicer or Special Servicer in connection with making a draw under such letter of credit. If the Mortgage Loan documents do not require the related Mortgagor to pay any costs and expenses relating to any modifications to or assignment of the related letter of credit, then the applicable Mortgage Loan Seller shall pay such costs and expenses as and to the extent required under the applicable Mortgage Loan Purchase Agreement. If the Mortgage Loan documents require the related Mortgagor to pay any costs and expenses relating to any modifications to the related letter of credit, and such Mortgagor fails to pay such costs and expenses after the Master Servicer has exercised reasonable efforts to collect such costs and expenses from such Mortgagor, then the Master Servicer shall give the applicable Mortgage Loan Seller notice of such failure and the amount of costs and expenses, and such Mortgage Loan Seller shall pay such costs and expenses as and to the extent required under the applicable Mortgage Loan Purchase Agreement. The costs and expenses of any modifications to Ground Leases shall be paid by the related Mortgagor. Neither the Master Servicer nor the Special Servicer shall have any liability for the

 

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failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement.

 

(g)          Notwithstanding anything herein to the contrary, in no event shall the Master Servicer (or the Trustee, as applicable) make an Advance with respect to any Companion Loan or BWP Trust Subordinate Companion Loan to the extent the related Serviced Mortgage Loan or Trust AB Mortgage Loan, as applicable, has been paid in full or is no longer included in the Trust Fund.

 

(h)          Servicing and administration of each Serviced Companion Loan and BWP Trust Subordinate Companion Loan shall continue hereunder and in accordance with the related Intercreditor Agreement for so long as the corresponding Serviced Mortgage Loan or Trust AB Mortgage Loan, as applicable, or any related REO Property is part of the Trust Fund or for such longer period as is contemplated by the related Intercreditor Agreement and, to the extent consistent with the related Intercreditor Agreement, as any amounts payable by the related Companion Holder or the holder of the related BWP Trust Subordinate Companion Loan, as applicable, to or for the benefit of the Trust or any party hereto, or payable to the related Companion Holder, in accordance with the related Intercreditor Agreement remain due and owing.

 

(i)          The Special Servicer agrees that upon the occurrence of a Servicing Transfer Event with respect to any Mortgage Loan, Serviced Whole Loan or BWP Trust Subordinate Companion Loan, that is subject to or becomes subject to an Intercreditor Agreement in the future, it shall, subject to Section 3.21, use commercially reasonable efforts to enforce, on behalf of the Trust, subject to the Servicing Standard and to the extent the Special Servicer determines such action is in the best interests of the Trust Fund, all rights conveyed to the Trustee pursuant to any such Intercreditor Agreement. The costs and expenses incurred by the Special Servicer in connection with such enforcement shall be paid as a Trust Fund expense or, subject to the terms of the applicable Intercreditor Agreement, (i) with respect to any Serviced Pari Passu Whole Loan, pro rata and pari passu, by the Trust Fund 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, (ii) with respect to the Trust AB Whole Loan, first, from proceeds in the Certificate Account that are allocable to the related BWP Trust Subordinate Companion Loan and then, if such amounts are insufficient, from the Certificate Account as a trust fund expense, or (iii) with respect to any AB Whole Loan, first, by the related AB Subordinate Companion Loan and then, by the Trust Fund.

 

(j)          Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that, to the extent required under the related Intercreditor Agreement, the servicing and administration of a Serviced Whole Loan shall continue hereunder (but not with respect to making Advances) even if the related Serviced Mortgage Loan is no longer part of the Trust Fund, until such time as a separate servicing agreement is entered into in accordance with the related Intercreditor Agreement (it being acknowledged that neither the Master Servicer nor the Special Servicer shall be obligated under a separate agreement to which it is not a party); provided that, other than pursuant to Section 6.03 (and, with respect to Section 6.03, solely with respect to claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses incurred in connection with a legal

 

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claim or action resulting from an action or inaction taken or not taken while the related Serviced Mortgage Loan was part of the Trust Fund), no costs, expenses, losses or fees accruing with respect to such Serviced Whole Loan on and after the date the related Serviced Mortgage Loan is no longer part of the Trust Fund shall be payable out of the Trust Fund and the Master Servicer shall have no obligation to make any Advance on or after the date such Serviced Mortgage Loan ceases to be part of the Trust Fund; provided, however, that if, in the case of any Serviced Pari Passu Whole Loan, the related Serviced Companion Loan continues to be included in an Other Securitization, then for so long as a separate servicing agreement (pursuant to the related Intercreditor Agreement) has not been entered into, the Master Servicer shall inform the related Other Servicer of any need to make Servicing Advances with respect to a Serviced Whole Loan within three (3) Business Days of determining that such an Advance is necessary or being notified that such an Advance is necessary, or in the case of a Servicing Advance that needs to be made on an emergency or urgent basis, within one (1) Business Day. With respect to Servicing Advances made by any Other Servicer as contemplated in the proviso to the preceding sentence, the Master Servicer shall, from collections on the related Serviced Whole Loan (but never out of general collections on the Mortgage Loans and REO Properties) received by the Master Servicer, reimburse the Other Servicer for such Servicing Advances in the same manner and on the same level of priority as if such Servicing Advances had been made by the Master Servicer hereunder.

 

(k)          Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the Master Servicer’s and the Special Servicer’s obligations and responsibilities hereunder and the Master Servicer’s and the Special Servicer’s authority with respect to a Non-Serviced Mortgage Loan are limited by and subject to the terms of the related Non-Serviced Intercreditor Agreement and the rights of the related Non-Serviced Master Servicer and Non-Serviced Special Servicer with respect thereto under the related Non-Serviced Pooling Agreement. The Master Servicer (or, with respect to any Specially Serviced Mortgage Loan, the Special Servicer) shall use reasonable efforts consistent with the Servicing Standards to enforce the rights of the Trustee (as holder of a Non-Serviced Mortgage Loan) under the related Non-Serviced Intercreditor Agreement and Non-Serviced Pooling Agreement.

 

(l)          The parties hereto acknowledge that each Non-Serviced Mortgage Loan is subject to the terms and conditions of the related Non-Serviced Intercreditor Agreement and further acknowledge that, pursuant to the related Non-Serviced Intercreditor Agreement, (i) the related Non-Serviced Mortgage Loan is to be serviced and administered by the related Non-Serviced Master Servicer and Non-Serviced Special Servicer in accordance with the related Non-Serviced Pooling Agreement, and (ii) in the event that (A) the related Non-Serviced Companion Loan is no longer part of the trust fund created by the related Non-Serviced Pooling Agreement and (B) the related Non-Serviced Mortgage Loan is included in the Trust Fund, then, as set forth in the related Non-Serviced Intercreditor Agreement, the related Non-Serviced Whole Loan shall continue to be serviced in accordance with the related Non-Serviced Pooling Agreement, until such time as a new servicing agreement has been agreed to by the parties to the related Non-Serviced Intercreditor Agreement in accordance with the provisions of such agreement and confirmation has been obtained from the Rating Agencies that such new servicing agreement would not result in a downgrade, qualification or withdrawal of the then current ratings of any Class of Certificates then outstanding.

 

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(m)          Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the Master Servicer’s and the Special Servicer’s obligations and responsibilities hereunder and the Master Servicer’s and the Special Servicer’s authority with respect to a Serviced Whole Loan are limited by, and subject to, the terms of the related Intercreditor Agreement. The Master Servicer (or, if a Serviced Whole Loan becomes a Specially Serviced Mortgage Loan, the Special Servicer) shall use reasonable efforts consistent with the Servicing Standard to obtain the benefits of the rights of the Trust Fund (as holder of the related Serviced Mortgage Loan) under the related Intercreditor Agreement. In the event of any conflict between this Agreement and the related Intercreditor Agreement, the provisions of the related Intercreditor Agreement shall control.

 

(n)          In connection with the securitization of any of (a) the Civic Opera Building Pari Passu Companion Loan, (b) The Roosevelt New Orleans Waldorf Astoria Pari Passu Companion Loans and (c) the Sunbelt Portfolio Pari Passu Companion Loan while it is a Serviced Companion Loan, upon the request of (and at the expense of) the related Serviced Companion Noteholder (or its designee), each of the Master Servicer, the Special Servicer (if such Serviced Companion Loan is a Specially Serviced Mortgage Loan) and the Trustee, as applicable, shall use reasonable efforts to cooperate with such Serviced Companion Noteholder in attempting to cause the related Mortgagor to provide information relating to such Whole Loan and the related notes, and that such holder reasonably determines to be necessary or appropriate, for inclusion in any disclosure document(s) relating to such Other Securitization.

 

(o)          The parties hereto acknowledge and agree that the servicing and administration of the BWP Trust Subordinate Companion Loan shall continue hereunder by the Master Servicer and the Special Servicer even if the related Trust AB Mortgage Loan is no longer part of the Trust Fund. The parties hereto acknowledge and agree that at any time a Trust AB Mortgage Loan is no longer an asset of the Trust, the Master Servicer and Special Servicer shall have no obligation to service such Mortgage Loan or the related Mortgaged Property and shall service only the related BWP Trust Subordinate Companion Loan pursuant to this Agreement, subject to the terms of the related Intercreditor Agreement with respect to any obligation to service and administer such Mortgage Loan or the related Mortgaged Property on an interim or temporary basis (taking into account such Mortgage Loan or related Mortgaged Property is no longer in the Trust and therefore not subject to any Advancing under the terms of this Agreement) while a successor servicing agreement is executed. In such case, in determining whether to incur and/or make, as applicable, any costs, expenses or liabilities with respect to the BWP Trust Subordinate Companion Loan or follow any request from the Subordinate Loan-Specific Directing Certificateholder or with respect to any enforcement action or other action solely regarding the BWP Trust Subordinate Companion Loan, the Master Servicer or Special Servicer, as applicable, shall determine, before incurring any such costs, expenses or liability, if such amounts are available from current collections on the BWP Trust Subordinate Companion Loan. The Master Servicer shall not make any Advances with respect to the BWP Trust Subordinate Companion Loan if the Trust AB Mortgage Loan is no longer in the Trust. If such amounts are available, the Master Servicer or Special Servicer shall pay such amounts only from collections on the BWP Trust Subordinate Companion Loan. If such amounts are not available from current collections on the BWP Trust Subordinate Companion Loan, no such amounts shall be incurred unless paid by the Class BWP Certificateholder. In any event, no losses, expenses,

 

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costs, fees or other amounts related solely to the BWP Trust Subordinate Companion Loan shall be borne by the remainder of the Trust.

 

Section 3.02          Collection of Mortgage Loan Payments. (a) Each of the Master Servicer and the Special Servicer shall make reasonable efforts to collect all payments called for under the terms and provisions of the Mortgage Loans, the Companion Loans and the BWP Trust Subordinate Companion Loan it is obligated to service hereunder, and shall follow such collection procedures as are consistent with this Agreement (including, without limitation, the Servicing Standard); provided that with respect to each Mortgage Loan that has an Anticipated Repayment Date, so long as the related Mortgagor is in compliance with each provision of the related Mortgage Loan documents, the Master Servicer and the Special Servicer shall not take any enforcement action with respect to the failure of the related Mortgagor to make any payment of Excess Interest, other than requests for collection, until the Maturity Date of the related Mortgage Loan or until the outstanding principal balance of such Mortgage Loan (exclusive of any portion representing accrued Excess Interest) has been paid in full); provided, further, that the Master Servicer or Special Servicer, as the case may be, may take action to enforce the Trust Fund’s right to apply excess cash flow to principal in accordance with the terms of the Mortgage Loan documents. The Master Servicer or the Special Servicer, as applicable, may in its discretion waive any Penalty Charge in connection with any delinquent payment on a Mortgage Loan, Companion Loan and BWP Trust Subordinate Companion Loan that it is obligated to service hereunder three (3) times during any period of twenty-four (24) consecutive months with respect to any Mortgage Loan, Serviced Companion Loan and BWP Trust Subordinate Companion Loan; provided that the Master Servicer or the Special Servicer, as applicable, may in its discretion waive any Penalty Charge in connection with any delinquent payment on a Mortgage Loan, Companion Loan and BWP Trust Subordinate Companion Loan one additional time in such 24-month period so long as with respect to any of the foregoing waivers, no Advance or additional Trust Fund expense has been incurred and remains unreimbursed to the Trust with respect to such Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan. Any additional waivers during such 24-month period with respect to such Mortgage Loan may be made, subject to the Servicing Standard, only after the Master Servicer or Special Servicer, as applicable, has, prior to the occurrence of a Consultation Termination Event, given notice of a proposed waiver to the Directing Certificateholder and, prior to the occurrence and continuance of a Control Event, the Directing Certificateholder has consented to such additional waiver (provided that if the Master Servicer or Special Servicer, as applicable, fails to receive a response to such notice from the Directing Certificateholder in writing within five (5) days of giving such notice, then the Directing Certificateholder shall be deemed to have consented to such proposed waiver); provided, further, that after the occurrence and during the continuance of a Control Event, the Master Servicer or Special Servicer, as applicable, may waive any Penalty Charge in accordance with the Servicing Standard without the consent of the Directing Certificateholder; provided, further, that the Directing Certificateholder shall have no consent rights with respect to any Excluded Loan with respect to the foregoing waivers.

 

(b)          (i) All amounts collected by or on behalf of the Trust in respect of a Mortgage Loan shall be applied to amounts due and owing under the Mortgage Loan documents (including for principal and accrued and unpaid interest) in accordance with the express provisions of the Mortgage Loan documents and any related Intercreditor Agreement; provided, however, that absent express provisions in the related Mortgage Loan documents (including any

 

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related Intercreditor Agreement), other than with respect to the application of Liquidation Proceeds, all amounts collected by or on behalf of the Trust in respect of a Mortgage Loan in the form of payments from the related Mortgagor or Insurance and Condemnation Proceeds under the Mortgage Loan or any proceeds (other than Liquidation Proceeds) with respect to any REO Loan (exclusive of amounts payable to any applicable Companion Loan or BWP Trust Subordinate Companion Loan pursuant to the terms of the related Intercreditor Agreement) will be applied in the following order of priority:

 

first, as a reimbursement first, to the Trustee and second, to the Master Servicer for any outstanding Advances related to such Mortgage Loan or REO Loan (including Workout-Delayed Reimbursement Amounts that have not been reimbursed to the Master Servicer) and interest thereon as provided in this Agreement and unpaid servicing compensation and related additional Trust Fund expenses;

 

second, as a recovery of accrued and unpaid interest on such Mortgage Loan or REO Loan, that has not been the subject of a P&I Advance, at the related Mortgage Rate in effect from time to time through the end of the related Interest Accrual Period, less any Appraisal Reduced Interest;

 

third, as a recovery of Unliquidated Advances, and, without duplication, principal of such Mortgage Loan or REO Loan then due and owing, in each case, that were paid from collections on the 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”;

 

fourth, as a recovery of Nonrecoverable Advances;

 

fifth, to the extent not previously allocated pursuant to clause first above, as a recovery of principal of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if the Mortgage Loan has been liquidated, as a recovery of principal to the extent of its entire remaining unpaid principal balance); and

 

sixth, as a recovery of Appraisal Reduced Interest; and

 

seventh, in accordance with the Servicing Standard, as a recovery of any other amounts due and owing on such Mortgage Loan, including, without limitation, late payment charges and Default Interest and Yield Maintenance Charges;

 

provided that payments or proceeds received with respect to any partial release of a Mortgaged Property or any portion thereof (including pursuant to a condemnation) at a time when the loan-to-value ratio of the related Mortgage Loan, Serviced Whole Loan or Trust AB Whole Loan, as applicable, exceeds 125% (based solely on the value of the real property, and excluding the value of the personal property and going concern value, if any) must be applied to reduce the principal balance of such Mortgage Loan, Serviced Whole Loan or Trust AB Whole Loan, as applicable, in the manner permitted by the REMIC Provisions; provided, further, that if the Non-Serviced Mortgage Loan and any related Non-Serviced Companion Loan(s) comprising a Non-Serviced Whole Loan become REO Loans, the treatment of the foregoing amounts with respect to such Non-Serviced Whole Loan shall be subject to the terms of the related

 

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Non-Serviced Intercreditor Agreement and Non-Serviced Pooling Agreement, in that order; provided, further, that with respect to each Mortgage Loan related to a Serviced Whole Loan or Trust AB Whole Loan, as applicable, amounts collected with respect to the related Serviced Whole Loan or Trust AB Whole Loan, as applicable, shall be allocated first pursuant to the terms of the related Intercreditor Agreement and then, any amounts allocated to the related Serviced Mortgage Loan or Trust AB Mortgage Loan, as applicable, shall be subject to application as described above.

 

(ii)          Liquidation Proceeds in respect of each Mortgage Loan or REO Loan (in the case of an REO Loan, exclusive of amounts payable to any applicable Companion Loan or BWP Trust Subordinate Companion Loan pursuant to the terms of the related Intercreditor Agreement) shall be applied in the following order of priority:

 

first, as a reimbursement first, to the Trustee and second, to the Master Servicer or the Special Servicer, as applicable for any outstanding Advances related to such Mortgage Loan or REO Loan (including Workout-Delayed Reimbursement Amounts that have not been reimbursed to the Master Servicer or the Special Servicer, as applicable) and interest thereon as provided in this Agreement and unpaid servicing compensation, liquidation expenses and related additional Trust Fund expenses);

 

second, as a recovery of accrued and unpaid interest on such Mortgage Loan or REO Loan that has not been the subject of a P&I Advance, at the related Mortgage Rate in effect from time to time through the end of the related Interest Accrual Period, less any Appraisal Reduced Interest;

 

third, as a recovery of Unliquidated Advances and, without duplication, principal of such Mortgage Loan or REO Loan then due and owing, in each case, that were paid from collections on the 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”;

 

fourth, as a recovery of Nonrecoverable Advances;

 

fifth, as a recovery of principal of such Mortgage Loan to the extent of its entire unpaid principal balance;

 

sixth, as a recovery of Appraisal Reduced Interest; and

 

seventh, in accordance with the Servicing Standard, as a recovery of any other amounts due and owing on such Mortgage Loan including, without limitation, late payment charges and Default Interest and Yield Maintenance Charges;

 

provided that if the Non-Serviced Mortgage Loan and any related Non-Serviced Companion Loan(s) comprising a Non-Serviced Whole Loan becomes an REO Loan, the treatment of the foregoing amounts with respect to such Non-Serviced Whole Loan shall be subject to the terms of the related Non-Serviced Intercreditor Agreement and Non-Serviced Pooling Agreement, in that order; provided, further, that with respect to each Mortgage Loan related to a Serviced Whole Loan or Trust AB Whole Loan, as applicable, amounts collected with respect to the related Serviced Whole Loan or Trust AB Whole Loan, as applicable, shall be

 

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allocated first pursuant to the terms of the related Intercreditor Agreement and then, any amounts allocated to the related Serviced Mortgage Loan or Trust AB Mortgage Loan, as applicable, shall be subject to application as described above.

 

(iii)          Notwithstanding clauses (i) and (ii) above, such provisions shall not be deemed to affect the priority of distributions of payments pursuant to the provisions of this Agreement. To the extent that such amounts are paid by a party other than a Mortgagor, such amounts shall be deemed to have been paid in respect of a purchase of all or part of the Mortgaged Property (in the case of Insurance and Condemnation Proceeds or Liquidation Proceeds) and then paid by the Mortgagor under the Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, or in accordance with Section 3.02(b)(ii) above.

 

(c)          To the extent consistent with the terms of the Mortgage Loans (and, with respect to each Serviced Whole Loan or Trust AB Whole Loan, as applicable, the related Serviced Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, and the related Intercreditor Agreement) and applicable law, the Master Servicer shall apply all Insurance and Condemnation Proceeds it receives on a day other than the Due Date to amounts due and owing under the related Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan as if such Insurance and Condemnation Proceeds were received on the Due Date immediately succeeding the month in which such Insurance and Condemnation Proceeds were received and otherwise in accordance with Section 3.02(b)(ii) above.

 

(d)          In the event that the Master Servicer or Special Servicer receives Excess Interest prior to the Determination Date for any Due Period, or receives notice from the related Mortgagor that the Master Servicer or Special Servicer will be receiving Excess Interest prior to the Determination Date for any Due Period, the Master Servicer or Special Servicer, as the case may be, shall notify the Trustee and Certificate Administrator two (2) Business Days prior to the related Distribution Date. None of the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee shall be responsible for any failure of the related Mortgagor to pay any such Excess Interest or prepayment penalty. The preceding statements shall not, however, be construed to limit the provisions of Section 3.02(a).

 

(e)          With respect to any Mortgage Loan (or BWP Trust Subordinate Companion Loan, as applicable) in connection with which the Mortgagor was required to escrow funds or to post a letter of credit related to obtaining certain performance objectives described in the applicable Mortgage Loan documents or BWP Trust Subordinate Companion Loan documents, as applicable, the Master Servicer shall, to the extent consistent with the Servicing Standard, hold such escrows, letters of credit and proceeds thereof as additional collateral and not apply such items to reduce the principal balance of such Mortgage Loan, Serviced Companion Loan or BWP Trust Subordinate Companion Loan, unless otherwise required to do so pursuant to the applicable Mortgage Loan documents, applicable law or court order.

 

(f)          Promptly following the Closing Date, in the case of any Non-Serviced Whole Loan, the Certificate Administrator shall send written notice (in the form attached hereto as Exhibit T) to the related Non-Serviced Master Servicer (with a copy to any other applicable party set forth on the schedule of addresses to Exhibit T) stating that, as of such date, the Trustee

 

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is the holder of the related Non-Serviced Mortgage Loan and directing such Non-Serviced Master Servicer to remit to the Master Servicer all amounts payable to, and to forward, deliver or otherwise make available, as the case may be, to the Master Servicer all reports, statements, documents, communications and other information that are to be forwarded, delivered or otherwise made available to, the holder of such Non-Serviced Mortgage Loan under the related Non-Serviced Intercreditor Agreement and the related Non-Serviced Pooling Agreement. The Master Servicer shall, within two (2) Business Days of receipt of available and properly identified funds, deposit into the Certificate Account all amounts received with respect to the related Non-Serviced Mortgage Loan, the related Non-Serviced Mortgaged Property or any related REO Property.

 

Section 3.03          Collection of Taxes, Assessments and Similar Items; Servicing Accounts. (a) The Master Servicer shall establish and maintain one or more accounts (the “Servicing Accounts”), into which all Escrow Payments shall be deposited and retained, and shall administer such Servicing Accounts in accordance with the Mortgage Loan documents and, if applicable, the Companion Loan documents or BWP Trust Subordinate Companion Loan documents, as the case may be. Any Servicing Account related to a Serviced Whole Loan or Trust AB Whole Loan, as the case may be, shall be held for the benefit of the Certificateholders and the related Serviced Companion Noteholder (including, in the case of the BWP Trust Subordinate Companion Loan, the Holders of the Class BWP Certificates) collectively, but this shall not be construed to modify respective interests of either noteholder therein as set forth in the related Intercreditor Agreement. Amounts on deposit in Servicing Accounts may only be invested in accordance with the terms of the related Mortgage Loan documents, Serviced Companion Loan documents and BWP Trust Subordinate Companion Loan documents, as applicable, or in Permitted Investments in accordance with the provisions of Section 3.06. Servicing Accounts shall be Eligible Accounts to the extent permitted by the terms of the related Mortgage Loan documents. Withdrawals of amounts so deposited from a Servicing Account may be made only to: (i) effect payment of items for which Escrow Payments were collected and comparable items; (ii) reimburse the Trustee and then the Master Servicer, if applicable, for any Servicing Advances; (iii) refund to Mortgagors any sums as may be determined to be overages; (iv) pay interest to Mortgagors on balances in the Servicing Account, if required by applicable law or the terms of the related Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan and as described below or, if not so required, to the Master Servicer; (v) after the occurrence of an event of default under the related Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan, apply amounts to the indebtedness under the applicable Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan; (vi) withdraw amounts deposited in error; (vii) pay Penalty Charges to the extent permitted by the related Mortgage Loan documents; or (viii) clear and terminate the Servicing Account at the termination of this Agreement in accordance with Section 9.01. As part of its servicing duties, the Master Servicer shall pay or cause to be paid to the Mortgagors interest on funds in Servicing Accounts, to the extent required by law or the terms of the related Mortgage Loan, Companion Loan or BWP Trust Subordinate Companion Loan; provided, however, that in no event shall the Master Servicer be required to remit to any Mortgagor any amounts in excess of actual net investment income or funds in the related Servicing Account. If allowed by the related Mortgage Loan documents and applicable law, the Master Servicer may charge the related Mortgagor an administrative fee for maintenance of the Servicing Accounts.

 

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(b)          The Special Servicer, in the case of REO Loans (other than any REO Loan succeeding a Non-Serviced Mortgage Loan), and the Master Servicer, in the case of all other Mortgage Loans (other than a Non-Serviced Mortgage Loan), each Serviced Companion Loan and the BWP Trust Subordinate Companion Loan, shall maintain accurate records with respect to each related Mortgaged Property reflecting the status of real estate taxes, assessments and other similar items that are or may become a lien thereon and the status of insurance premiums and any ground rents payable in respect thereof. The Special Servicer, in the case of REO Loans (other than any REO Loan succeeding a Non-Serviced Mortgage Loan), and the Master Servicer, in the case of all other Mortgage Loans (other than a Non-Serviced Mortgage Loan), each Serviced Companion Loan and BWP Trust Subordinate Companion Loan, shall use reasonable efforts consistent with the Servicing Standard to obtain, from time to time, all bills for the payment of such items (including renewal premiums) and shall effect payment thereof from the REO Account or by the Master Servicer as Servicing Advances prior to the applicable penalty or termination date and, in any event, prior to the institution of foreclosure or similar proceedings with respect to the related Mortgaged Property for nonpayment of such items, employing for such purpose Escrow Payments (which shall be so applied by the Master Servicer at the written direction of the Special Servicer in the case of REO Loans) as allowed under the terms of the related Mortgage Loan (other than a Non-Serviced Mortgage Loan), Companion Loan and BWP Trust Subordinate Companion Loan. Other than with respect to any Non-Serviced Mortgage Loan, the Master Servicer shall service and administer any reserve accounts (including monitoring, maintaining or changing the amounts of required escrows) in accordance with the terms of such Mortgage Loan and the related Serviced Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, and the Servicing Standard. To the extent that a Mortgage Loan (other than a Non-Serviced Mortgage Loan) and any related Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, does not require a Mortgagor to escrow for the payment of real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items, the Special Servicer, in the case of REO Loans, and the Master Servicer, in the case of all other Mortgage Loans, Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, that it is responsible for servicing hereunder, shall use reasonable efforts consistent with the Servicing Standard to cause the Mortgagor to comply with its obligation to make payments in respect of such items at the time they first become due and, in any event, prior to the institution of foreclosure or similar proceedings with respect to the related Mortgaged Property for nonpayment of such items.

 

(c)          In accordance with the Servicing Standard and for each Mortgage Loan (other than any Non-Serviced Mortgage Loan) and each Serviced Whole Loan and BWP Trust Subordinate Companion Loan, as applicable, the Master Servicer shall advance all such funds as are necessary for the purpose of effecting the payment of (i) real estate taxes, assessments and other similar items that are or may become a lien thereon, (ii) ground rents (if applicable) and (iii) premiums on Insurance Policies, in each instance if and to the extent Escrow Payments collected from the related Mortgagor (or related REO Revenues, if applicable) are insufficient to pay such item when due and the related Mortgagor has failed to pay such item on a timely basis, and provided, however, that the particular advance would not, if made, constitute a Nonrecoverable Servicing Advance and provided, further, however, that with respect to the payment of taxes and assessments, the Master Servicer shall not be required to make such advance until the later of five (5) Business Days after the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as the case may be, has received confirmation that

 

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such item has not been paid or the date prior to the date after which any penalty or interest would accrue in respect of such taxes or assessments. The Special Servicer shall give the Master Servicer and the Trustee no less than five (5) Business Days’ written (facsimile or electronic) notice before the date on which the Master Servicer is requested to make any Servicing Advance with respect to a given Specially Serviced Mortgage Loan or REO Property; provided, however, that only two (2) Business Days’ written (facsimile or electronic) notice shall be required in respect of Servicing Advances required to be made on an emergency or urgent basis provided, further, that the Special Servicer shall not be entitled to make such a request (other than for Servicing Advances required to be made on an urgent or emergency basis) more frequently than once per calendar month (although such request may relate to more than one Servicing Advance). The Master Servicer may pay the aggregate amount of such Servicing Advances listed on a monthly request to the Special Servicer, in which case the Special Servicer shall remit such Servicing Advances to the ultimate payees. The Special Servicer shall have no obligation to make any Servicing Advances. In addition, in connection with any request by the Special Servicer for the disbursement of any Servicing Advance pursuant to the above provisions, the Special Servicer shall provide the Master Servicer and the Trustee with such information in its possession as the Master Servicer or the Trustee, as applicable, may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Servicing Advance would constitute a Nonrecoverable Advance.

 

Any request by the Special Servicer that the Master Servicer make a Servicing Advance shall be deemed to be a determination by the Special Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing Advance, and the Master Servicer shall be entitled to conclusively rely on such determination, provided that the determination shall not be binding on the Master Servicer or Trustee. On the first Business Day after the Determination Date for the related Distribution Date, the Special Servicer shall report to the Master Servicer if the Special Servicer determines any Servicing Advance previously made by the Master Servicer with respect to a Specially Serviced Mortgage Loan or REO Loan is a Nonrecoverable Servicing Advance. The Master Servicer shall be entitled to conclusively rely on such a determination, but such determination shall not be binding upon the Master Servicer, and shall in no way limit the ability of the Master Servicer in the absence of such determination to make its own determination that any Advance is a Nonrecoverable Advance. If the Special Servicer makes a determination that only a portion of, and not all of, any previously made or proposed Servicing Advance is a Nonrecoverable Advance, the Master Servicer shall 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 Advance. All such Advances shall be reimbursable in the first instance from related collections from the Mortgagors and further as provided in Section 3.05(a). No costs incurred by the Master Servicer or the Special Servicer in effecting the payment of real estate taxes, assessments and, if applicable, ground rents on or in respect of the Mortgaged Properties shall, for purposes hereof, including, without limitation, the Certificate Administrator’s calculation of monthly distributions to Certificateholders, be added to the unpaid principal balances of the related Mortgage Loans, any related Serviced Companion Loan or BWP Trust Subordinate Companion Loan, if applicable, notwithstanding that the terms of such Mortgage Loans, related Serviced Companion Loan or BWP Trust Subordinate Companion Loan, if applicable, so permit. If the Master Servicer fails to make any required Servicing Advance as and when due (including any applicable cure periods), to the extent the Trustee has actual knowledge of such failure, the Trustee shall make such Servicing Advance pursuant to

 

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Section 7.05. Notwithstanding anything herein to the contrary, no Servicing Advance shall be required hereunder if such Servicing Advance would, if made, constitute a Nonrecoverable Servicing Advance. In addition, the Master Servicer shall consider Unliquidated Advances in respect of prior Servicing Advances for purposes of nonrecoverability determinations. The Special Servicer shall have no obligation to make any Servicing Advances under this Agreement.

 

Notwithstanding anything to the contrary contained in this Section 3.03(c), the Master Servicer may in its good faith judgment elect (but shall not be required unless directed by the Special Servicer with respect to Specially Serviced Mortgage Loans and REO Loans) to make a payment from amounts on deposit in the Certificate Account (or any Companion Distribution Account maintained as a subaccount thereof by a Companion Paying Agent, if applicable) (which shall be deemed first made from amounts distributable as principal and then from all other amounts comprising general collections) to pay for certain expenses set forth below notwithstanding that the Master Servicer (or Special Servicer, as applicable) has determined that a Servicing Advance with respect to such expenditure would be a Nonrecoverable Servicing Advance (unless, with respect to Specially Serviced Mortgage Loans or REO Loans, the Special Servicer has notified the Master Servicer to not make such expenditure), where making such expenditure would prevent (i) the related Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any event that would cause a loss of the priority of the lien of the related Mortgage, or the loss of any security for the related Mortgage Loan, BWP Trust Subordinate Companion Loan or Serviced Companion Loan; provided that in each instance, the Master Servicer or the Special Servicer, as applicable, determines in accordance with the Servicing Standard (as evidenced by an Officer’s Certificate delivered to the Trustee) that making such expenditure is in the best interest of the Certificateholders (including, in the case of the BWP Trust Subordinate Companion Loan, the Holders of the Class BWP Certificates) (and, if applicable, the Companion Holders), all as a collective whole (taking into account the subordinate or pari passu nature of any Companion Loans or BWP Trust Subordinate Companion Loan, as the case may be). The Master Servicer or Trustee may elect to obtain reimbursement of Nonrecoverable Servicing Advances from the Trust Fund pursuant to the terms of Section 3.19(c). The parties acknowledge that pursuant to the applicable Non-Serviced Pooling Agreement, the applicable Non-Serviced Master Servicer is obligated to make servicing advances with respect to the related Non-Serviced Whole Loan. The applicable Non-Serviced Master Servicer shall be entitled to reimbursement for Nonrecoverable Servicing Advances with respect to such Non-Serviced Whole Loan (with, in each case, any accrued and unpaid interest thereon provided for under the applicable Non-Serviced Pooling Agreement) in the manner set forth in the applicable Non-Serviced Pooling Agreement and the applicable Non-Serviced Intercreditor Agreement.

 

(d)          In connection with its recovery of any Servicing Advance out of the Certificate Account (or any Companion Distribution Account maintained as a subaccount thereof by the Companion Paying Agent, if applicable) pursuant to Section 3.05(a), the Trustee, the Special Servicer and then the Master Servicer, as the case may be and in that order, shall be entitled to receive, out of any amounts then on deposit in the Certificate Account interest at the Reimbursement Rate in effect from time to time, accrued on the amount of such Servicing Advance from the date made to, but not including, the date of reimbursement. Subject to Section 3.19(c), the Master Servicer shall reimburse itself or the Trustee, as the case may be, for any outstanding Servicing Advance as soon as practically possible after funds available for such

 

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purpose are deposited in the Certificate Account (or any Companion Distribution Account maintained as a subaccount thereof by the Companion Paying Agent, if applicable) subject to the Master Servicer’s or the Trustee’s options and rights to defer recovery of such amounts as provided herein. To the extent amounts on deposit in the Companion Distribution Account with respect to the related Companion Loan are insufficient for any such reimbursement, the Master Servicer shall use efforts in accordance with the Servicing Standard to enforce the rights of the holder of the related Mortgage Loan under the related Intercreditor Agreement, if any, to obtain any reimbursement available from the holder of the related Companion Loan.

 

(e)          To the extent an operations and maintenance plan is required to be established and executed pursuant to the terms of a Mortgage Loan (other than a Non-Serviced Mortgage Loan), the Master Servicer shall request from the Mortgagor written confirmation thereof within a reasonable time after the later of the Closing Date and the date as of which such plan is required to be established or completed. To the extent any repairs, capital improvements, actions or remediations are required to have been taken or completed pursuant to the terms of the Mortgage Loan (other than a Non-Serviced Mortgage Loan), the Master Servicer shall request from the Mortgagor written confirmation of such actions and remediations within a reasonable time after the later of the Closing Date and the date as of which such action or remediations are required to be or to have been taken or completed. To the extent a Mortgagor shall fail to promptly respond to any inquiry described in this Section 3.03(e), the Master Servicer shall report any such failure to the Special Servicer within a reasonable time after the date as of which such actions or remediations are required to be or to have been taken or completed.

 

Section 3.04          The Certificate Account, the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Companion Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve Account, the Class EC Distribution Account and the BWP REMIC Distribution Account. (a) The Master Servicer shall establish and maintain, or cause to be established and maintained, a Certificate Account in which the Master Servicer shall deposit or cause to be deposited on a daily basis and in no event later than the second Business Day following receipt of available and properly identified funds (in the case of payments by Mortgagors or other collections on the Mortgage Loans, Companion Loans or BWP Trust Subordinate Companion Loan), except as otherwise specifically provided herein, the following payments and collections received or made by or on behalf of it subsequent to the Cut-off Date (other than in respect of principal and interest on the Mortgage Loans, Companion Loans or BWP Trust Subordinate Companion Loan due and payable on or before the Cut-off Date, which payments shall be delivered promptly to the appropriate Mortgage Loan Seller or its respective designee and other than any amounts received from Mortgagors which are received in connection with the purchase of defeasance collateral), or payments (other than Principal Prepayments) received by it on or prior to the Cut-off Date but allocable to a period subsequent thereto:

 

(i)          all payments on account of principal, including Principal Prepayments on the Mortgage Loans or the BWP Trust Subordinate Companion Loan or principal prepayments on Serviced Companion Loans;

 

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(ii)          all payments on account of interest on the Mortgage Loans, the BWP Trust Subordinate Companion Loan or the Serviced Companion Loans, including Excess Interest, Yield Maintenance Charges and Default Interest;

 

(iii)          late payment charges and other Penalty Charges to the extent required to offset interest on Advances and additional Trust Fund expenses (other than Special Servicing Fees, Workout Fees or Liquidation Fees) as required by Section 3.11(d);

 

(iv)          all Insurance and Condemnation Proceeds and Liquidation Proceeds (other than Gain-on-Sale Proceeds or Non-Serviced Gain-on-Sale Proceeds) received in respect of any Mortgage Loan, BWP Trust Subordinate Companion Loan, Serviced Companion Loan or REO Property (other than (A) Liquidation Proceeds that are received in connection with the purchase by the Master Servicer, the Special Servicer, the Holders of the majority of the Controlling Class, or the Holders of the Class R Certificates of all the Mortgage Loans and any REO Properties in the Trust Fund and that are to be deposited in the Lower-Tier REMIC Distribution Account pursuant to Section 9.01 and (B) any proceeds that are received in connection with the purchase, if any, of a Serviced Pari Passu Companion Loan from a securitization by the related mortgage loan seller, which shall be paid directly to the servicer of such securitization) together with any recovery of Unliquidated Advances in respect of the related Mortgage Loans;

 

(v)          any amounts required to be transferred from the REO Account pursuant to Section 3.16(c);

 

(vi)          any amounts required to be deposited by the Master Servicer pursuant to Section 3.06 in connection with losses incurred with respect to Permitted Investments of funds held in the Certificate Account; and

 

(vii)          any amounts required to be deposited by the Master Servicer or the Special Servicer pursuant to Section 3.07(b) in connection with losses resulting from a deductible clause in a blanket hazard or master single interest policy.

 

Notwithstanding the foregoing requirements, the Master Servicer need not deposit into the Certificate Account any amount that the Master Servicer would be authorized to withdraw immediately from such account in accordance with the terms of Section 3.05 and shall be entitled to instead immediately pay such amount directly to the Person(s) entitled thereto; provided that such amounts shall be applied in accordance with the terms hereof and shall be reported as if deposited in such Certificate Account and then withdrawn.

 

The foregoing requirements for deposit in the Certificate Account shall be exclusive, it being understood and agreed that, without limiting the generality of the foregoing, actual payments from Mortgagors in the nature of Escrow Payments, charges for beneficiary statements or demands, assumption fees, modification fees, extension fees, defeasance fees, amounts collected for Mortgagor checks returned for insufficient funds or other amounts the Master Servicer or the Special Servicer would be entitled to retain as additional servicing compensation need not be deposited by the Master Servicer in the Certificate Account. If the Master Servicer shall deposit in the Certificate Account any amount not required to be deposited

 

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therein, it may at any time withdraw such amount from the Certificate Account, any provision herein to the contrary notwithstanding. Assumption, extension and modification fees actually received from Mortgagors on Specially Serviced Mortgage Loans shall be promptly delivered to the Special Servicer as additional servicing compensation.

 

Upon receipt of any of the foregoing amounts in clauses (i) through (iv) above with respect to any Specially Serviced Mortgage Loans, the Special Servicer shall remit within one (1) Business Day such amounts to the Master Servicer for deposit into the Certificate Account, in accordance with this Section 3.04(a). Any such amounts received by the Special Servicer with respect to an REO Property shall be deposited by the Special Servicer into the REO Account and remitted to the Master Servicer for deposit into the Certificate Account, pursuant to Section 3.16(c). With respect to any such amounts paid by check to the order of the Special Servicer, the Special Servicer shall endorse without recourse or warranty such check to the order of the Master Servicer and shall promptly deliver any such check to the Master Servicer by overnight courier. Funds in the Certificate Account may only be invested in Permitted Investments in accordance with the provisions of Section 3.06. As of the Closing Date, the Certificate Account for the Master Servicer shall be located at the offices of PNC Bank, National Association. The Master Servicer shall give notice to the Trustee, the Special Servicer, the Certificate Administrator and the Depositor of the new location of the Certificate Account prior to any change thereof.

 

For purposes of determining amounts to be deposited in the Certificate Account in respect of the BWP Trust Subordinate Companion Loan and the Trust AB Mortgage Loan, the Master Servicer shall determine the allocation of such amounts in accordance with the related Intercreditor Agreement. All amounts so allocable to the BWP Trust Subordinate Companion Loan shall be held separate and apart from other amounts deposited in the Certificate Account (or in a subaccount of the Certificate Account) and may be withdrawn from the Certificate Account (pursuant to Section 3.04 and otherwise) only to the extent set forth in this Agreement and not specifically prohibited under the related Intercreditor Agreement.

 

(b)          The Certificate Administrator, on behalf of the Trustee, shall establish and maintain (i) the Lower-Tier REMIC Distribution Account, the Interest Reserve Account and the Gain-on-Sale Reserve Account in trust for the benefit of the Certificateholders (other than the Class BWP and Class Z Certificateholders), (provided that any Gain-on-Sale Proceeds with respect to the BWP Trust Subordinate Companion Loan shall be deemed distributed by the BWP Trust Subordinate Companion Loan REMIC in respect of the Class BWP-R Interest to the Holders of the Class R Certificates and then re-contributed in respect of the Class LR Interest and held by the Certificate Administrator as an asset of the Lower-Tier REMIC for the benefit of the Trustee as Holder of the Uncertificated Lower-Tier Interests and the Certificateholders), (ii) the Upper-Tier REMIC Distribution Account for the benefit of the Certificateholders (other than the Class BWP and Class Z Certificateholders) and the Trustee as holder of the Uncertificated Lower-Tier Interests, (iii) the Excess Interest Distribution Account for the benefit of the Class Z Certificateholders, (iv) the Class EC Distribution Account for the benefit of the Class EC Certificateholders and (v) the BWP REMIC Distribution Account for the benefit of the Class BWP Certificateholders. The Master Servicer shall deliver to the Certificate Administrator each month on or before the P&I Advance Date therein, for deposit (x) in the Lower-Tier REMIC Distribution Account, that portion of the Available Distribution Amount attributable to

 

 

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the Mortgage Loans (in each case, calculated without regard to clauses (a)(iii)(B), (a)(iv), and (c) of the definition of Available Distribution Amount) for the related Distribution Date, (y) in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the Certificate Account after giving effect to withdrawals of funds pursuant to Section 3.05(a)(ii), and (z) in the BWP REMIC Distribution Account, the Class BWP Available Distribution Amount attributable to the BWP Trust Subordinate Companion Loan without regard to clause (c) or clause (e) of the definition of the Class BWP Available Distribution Amount.

 

With respect to each Companion Loan (excluding any Non-Serviced Companion Loan), the Companion Paying Agent shall establish and maintain the Companion Distribution Account, which may be a subaccount of the Certificate Account, for distributions to each Companion Holder, to be held for the benefit of the related Companion Holder and shall, within two (2) Business Days following receipt of available and properly identified funds (to the extent consistent with the related Intercreditor Agreement), deposit in the Companion Distribution Account any and all amounts received by the Companion Paying Agent that are required by the terms of this Agreement or the applicable Intercreditor Agreement to be deposited therein; provided, however, that the Companion Paying Agent shall separately track for each Serviced Companion Loan all amounts deposited with respect to such Serviced Companion Loan. The Master Servicer shall deliver to the Companion Paying Agent each month, on or before the P&I Advance Date therein, for deposit in the Companion Distribution Account, an aggregate amount of immediately available funds, to the extent received with respect to the related Serviced Whole Loan, to the extent of available funds, equal to the amount to be distributed to the related Companion Holder pursuant to the terms of this Agreement and the related Intercreditor Agreement. Notwithstanding the preceding, the following provisions shall apply to remittances relating to each Serviced Companion Loan that has been deposited into an Other Securitization: (1) on each Serviced Whole Loan Remittance Date, the Master Servicer shall withdraw from the Certificate Account (or applicable portion thereof) an aggregate amount equal to all payments and/or collections actually received on, and payable to, such Serviced Companion Loan prior to such dates; provided, however, that in no event shall the Master Servicer be required to transfer to the Companion Distribution Account any portion thereof that is payable or reimbursable to or at the direction of any party to this Agreement under the other provisions of this Agreement and/or the related Intercreditor Agreement; and (2) on each Serviced Whole Loan Remittance Date, the Companion Paying Agent shall make the payments and remittance described in Section 4.01(m) of this Agreement, which payments and remittance shall be made, in each case, on the Serviced Whole Loan Remittance Date.

 

The Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve Account, the Interest Reserve Account, the Companion Distribution Account, the Class EC Distribution Account and the BWP REMIC Distribution Account may be subaccounts of a single Eligible Account, which shall be maintained as a segregated account separate from other accounts.

 

In addition to the amounts required to be deposited in the Lower-Tier REMIC Distribution Account or the BWP REMIC Distribution Account pursuant to this Section 3.04, the Master Servicer shall, as and when required hereunder, deliver to the Certificate Administrator

 

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for deposit in the Lower-Tier REMIC Distribution Account or the BWP REMIC Distribution Account, as applicable:

 

(i)          any amounts required to be deposited by the Master Servicer pursuant to Section 3.19(a) as Compensating Interest Payments (other than the portion of any Compensating Interest Payment allocated to a Serviced Pari Passu Companion Loan) in connection with Prepayment Interest Shortfalls;

 

(ii)          any P&I Advances required to be made by the Master Servicer in accordance with Section 4.03;

 

(iii)          any Liquidation Proceeds paid by the Master Servicer, the Special Servicer, the Holders of the Controlling Class or the Holders of the Class R Certificates in connection with the purchase of all of the Mortgage Loans and the BWP Trust Subordinate Companion Loan and any REO Properties in the Trust Fund pursuant to Section 9.01 (exclusive of that portion thereof required to be deposited in the Certificate Account pursuant to Section 9.01);

 

(iv)          any Yield Maintenance Charges with respect to the Mortgage Loans and the BWP Trust Subordinate Companion Loan, as applicable, actually collected; and

 

(v)          any other amounts required to be so delivered for deposit in the Lower-Tier REMIC Distribution Account or the BWP REMIC Distribution Account (in respect of the BWP Trust Subordinate Companion Loan) pursuant to any provision of this Agreement.

 

If, as of the close of business (New York City time) on any P&I Advance Date or on such other date as any amount referred to in the foregoing clauses (i) through (v) or any Excess Interest are required to be delivered hereunder, the Master Servicer shall not have delivered to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account, the Excess Interest Distribution Account or the BWP REMIC Distribution Account (in respect of the BWP Trust Subordinate Companion Loan), as applicable, the amounts required to be deposited therein pursuant to the provisions of this Agreement (including any P&I Advance with respect to the Mortgage Loans, pursuant to Section 4.03(a) hereof), the Master Servicer shall pay the Certificate Administrator interest on such late payment at the Prime Rate from and including the date such payment was required to be made (without regard to any grace period set forth in Section 7.01(a)(i)) until (but not including) the date such late payment is received by the Certificate Administrator.

 

The Certificate Administrator shall, upon receipt, deposit in the Lower-Tier REMIC Distribution Account or the BWP REMIC Distribution Account (in respect of the BWP Trust Subordinate Companion Loan) or the Excess Interest Distribution Account, as applicable, any and all amounts received by the Certificate Administrator that are required by the terms of this Agreement to be deposited therein.

 

Promptly on each Distribution Date, the Certificate Administrator shall be deemed to withdraw from the Lower-Tier REMIC Distribution Account and deposit in the Upper-Tier REMIC Distribution Account an aggregate amount of immediately available funds

 

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equal to the Lower-Tier Distribution Amount and the amount of any Yield Maintenance Charges for such Distribution Date allocated in payment of the Uncertificated Lower-Tier Interests as specified in Section 4.01(d) and Section 4.01(f), respectively.

 

Funds on deposit in the Gain-on-Sale Reserve Account, the Interest Reserve Account, the Companion Distribution Account, the Excess Interest Distribution Account, the Class EC Distribution Account, the Upper-Tier REMIC Distribution Account, the Lower-Tier REMIC Distribution Account or the BWP REMIC Distribution Account shall not be invested for so long as Wells Fargo Bank, National Association is the Certificate Administrator.

 

As of the Closing Date, the Interest Reserve Account, the Excess Interest Distribution Account, the Class EC Distribution Account, the Upper-Tier REMIC Distribution Account, the Lower-Tier REMIC Distribution Account and the BWP REMIC Distribution Account shall be located at the offices of the Certificate Administrator. The Certificate Administrator shall give notice to the Trustee, the Master Servicer and the Depositor of the proposed location of the Interest Reserve Account, the Excess Interest Distribution Account, the Class EC Distribution Account, the Upper-Tier REMIC Distribution Account, the Lower-Tier REMIC Distribution Account, the BWP REMIC Distribution Account and, if established, the Gain-on-Sale Reserve Account prior to any change thereof.

 

For the avoidance of doubt, the Certificate Account (other than (i) any portion holding Excess Interest and (ii) the Companion Distribution Account, if it is a sub-account of the Certificate Account, the Lower-Tier REMIC Distribution Account, the Gain-on-Sale Reserve Account, any Servicing Account, the REO Account, and the Interest Reserve Account (including interest, if any, earned on the investment of funds in such accounts) will be owned by the Lower-Tier REMIC; the Excess Interest Distribution Account (and any portion of the Certificate Account holding Excess Interest) (including interest, if any, earned on the investment of funds in such accounts) will be owned by the Grantor Trust for the benefit of the Class Z Certificateholders; the Class EC Distribution Account (including interest, if any, earned on the investment of funds in such account) will be owned by the Grantor Trust for the benefit of the Class EC Certificateholders; the Companion Distribution Account (including interest, if any, earned on the investment of funds in such account) will be owned by the Companion Holders, as applicable; the Upper-Tier REMIC Distribution Account (including interest, if any, earned on the investment of funds in such account) will be owned by the Upper-Tier REMIC; and the BWP REMIC Distribution Account (including interest, if any, earned on the investment of funds in such account) will be owned by the BWP Trust Subordinate Companion Loan REMIC, each for federal income tax purposes.

 

(c)          Prior to any Determination Date for the first Due Period during which Excess Interest is received on any Mortgage Loan, and upon notification from the Master Servicer or Special Servicer pursuant to Section 3.02(d), the Certificate Administrator, on behalf of the Certificateholders, shall establish and maintain the Excess Interest Distribution Account in its own name on behalf of the Trustee in trust for the benefit of the Class Z Certificateholders. The Excess Interest Distribution Account shall be established and maintained as an Eligible Account (or as a subaccount of an Eligible Account). Prior to the applicable Distribution Date, the Master Servicer shall remit to the Certificate Administrator for deposit in the Excess Interest

 

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Distribution Account an amount equal to the Excess Interest received prior to the Determination Date for the applicable Due Period.

 

(d)          Following the distribution of Excess Interest to Class Z Certificateholders on the first Distribution Date after which there are no longer any Mortgage Loans outstanding which pursuant to their terms could pay Excess Interest, the Certificate Administrator shall terminate the Excess Interest Distribution Account.

 

(e)          The Certificate Administrator shall establish (upon notice from the Special Servicer of an event occurring that generates Gain-on-Sale Proceeds) and maintain the Gain-on-Sale Reserve Account for the benefit of the Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as an Eligible Account (or as a subaccount of an Eligible Account), separate and apart from trust funds for mortgage pass-through certificates of other series administered by the Certificate Administrator.

 

Upon the disposition of any REO Property, in accordance with Section 3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale Proceeds, if any, realized that are allocable to the Mortgage Loan or BWP Trust Subordinate Companion Loan, as applicable, in connection with such sale and remit such funds to the Certificate Administrator for deposit into the Gain-on-Sale Reserve Account. In the case of the Bridgewater Place Whole Loan, any Gain-on-Sale Proceeds on such disposition that are allocable to the BWP Trust Subordinate Companion Loan in accordance with the terms of the Bridgewater Place Intercreditor Agreement shall be remitted to the Certificate Administrator for deposit into the BWP REMIC Distribution Account. Any gain on such disposition that is allocable to any related Companion Loan in accordance with the terms of the related Intercreditor Agreement shall be remitted to the Companion Paying Agent for deposit into the Companion Distribution Account.

 

(f)          Any Non-Serviced Gain-on-Sale Proceeds received with respect to any Non-Serviced Mortgage Loan pursuant to the related Non-Serviced Pooling Agreement shall be remitted to the Certificate Administrator for deposit into the Gain-on-Sale Reserve Account.

 

(g)          The Certificate Administrator shall establish and maintain the Class EC Distribution Account, in its own name on behalf of the Trustee, in trust for the benefit of the Holders of the Class EC Certificates, which shall be an asset of the Trust Fund and the Grantor Trust, but shall not be an asset of any Trust REMIC. The Class EC Distribution Account shall be established and maintained as an Eligible Account or a subaccount of an Eligible Account. The Certificate Administrator shall make or be deemed to have made deposits in and withdrawals from the Class EC Distribution Account in accordance with Article IV of this Agreement.

 

(h)          The Certificate Administrator shall establish and maintain the BWP REMIC Distribution Account, in its own name on behalf of the Trustee, in trust for the benefit of the Holders of the Class BWP Certificates, which shall be an asset of the Trust Fund and the BWP Trust Subordinate Companion Loan REMIC, but shall not be an asset of any other Trust REMICs. The BWP REMIC Distribution Account shall be established and maintained as an Eligible Account or a subaccount of an Eligible Account. The Certificate Administrator shall make or be deemed to have made deposits in and withdrawals from the BWP REMIC Distribution Account in accordance with Section 3.05 and Article IV of this Agreement.

 

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Section 3.05     Permitted Withdrawals from the Certificate Account, the Distribution Accounts and the Companion Distribution Account. (a) The Master Servicer may, from time to time, make withdrawals from the Certificate Account (or the applicable subaccount thereof) for any of the following purposes (the following not being an order of priority and without duplication of the same payment or reimbursement):

(i)          (A) no later than 4:00 p.m., New York City time, on each P&I Advance Date, to remit to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account (or the BWP REMIC Distribution Account in respect of the BWP Trust Subordinate Companion Loan) and the Excess Interest Distribution Account the amounts required to be remitted pursuant to the first paragraph of Section 3.04(b) or that may be applied to make P&I Advances pursuant to Section 4.03(a); and (B) pursuant to the second paragraph of Section 3.04(b), to remit to the Companion Paying Agent for deposit in the Companion Distribution Account the amounts required to be so deposited with respect to the Companion Loans;

(ii)         (A) to pay itself (or, with respect to any Transferable Servicing Interest, to pay Midland Loan Services, a Division of PNC Bank, National Association if Midland Loan Services, a Division of PNC Bank, National Association is no longer the Master Servicer, any such interest pursuant to Section 3.11(a)) unpaid Servicing Fees in respect of each Mortgage Loan, BWP Trust Subordinate Companion Loan, Companion Loan, Specially Serviced Mortgage Loan, and REO Loan, as applicable, the Master Servicer’s rights to payment of Servicing Fees pursuant to this clause (ii)(A) with respect to any Mortgage Loan, related Serviced Companion Loan, BWP Trust Subordinate Companion Loan, Specially Serviced Mortgage Loan or REO Loan, as applicable, being limited to amounts received on or in respect of such Mortgage Loan, BWP Trust Subordinate Companion Loan or related Serviced Companion Loan (whether in the form of payments, Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO Loan (whether in the form of REO Revenues, Liquidation Proceeds or Insurance and Condemnation Proceeds), that are allocable as recovery of interest thereon, (B) to pay the Special Servicer any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in respect of each Specially Serviced Mortgage Loan or REO Loan or Corrected Mortgage Loan, as applicable, and any expense incurred by the Special Servicer in connection with performing any inspections pursuant to Section 3.12(a), remaining unpaid first, out of related REO Revenues, Liquidation Proceeds, Insurance and Condemnation Proceeds and collections in respect of the related Specially Serviced Mortgage Loan (provided that, in the case of such payment relating to a Serviced Whole Loan or the Trust AB Whole Loan, as applicable, such payment shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan, in accordance with their respective outstanding principal balances, or (ii) with respect to a Serviced AB Whole Loan or Trust AB Whole Loan, first, from the related AB Subordinate Companion Loan or BWP Trust Subordinate Companion Loan, as applicable, and then, from the related Serviced AB Mortgage Loan or Trust AB Mortgage Loan, as applicable) and then out of general collections on the Mortgage Loans and REO Properties, and (C) to pay the Senior Trust Advisor any unpaid Senior Trust Advisor Fees or Senior Trust Advisor Consulting Fees

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 in respect of each Mortgage Loan, Specially Serviced Mortgage Loan (other than any related Companion Loan), REO Loan (other than any related Companion Loan) or BWP Trust Subordinate Companion Loan, as applicable, the Senior Trust Advisor’s right to payment of the Senior Trust Advisor Fee or Senior Trust Advisor Consulting Fee pursuant to this clause (ii)(C) with respect to any Mortgage Loan, Specially Serviced Mortgage Loan (other than any related Companion Loan), REO Loan (other than any related Companion Loan) or BWP Trust Subordinate Companion Loan, as applicable, being limited to amounts received on or in respect of such Mortgage Loan or BWP Trust Subordinate Companion Loan (whether in the form of payments, P&I Advances (solely with respect to the Senior Trust Advisor Fee), Liquidation Proceeds or Insurance and Condemnation Proceeds), such REO Loan (whether in the form of REO Revenues, Liquidation Proceeds or Insurance and Condemnation Proceeds), that are allocable as recovery of interest thereon;