Contract

Exhibit 4.5

 

EXECUTION VERSION

 

 

 

DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION,
Depositor,

 

Keybank national association,
Master Servicer,

 

AEGON USA REALTY ADVISORS, LLC,
Special Servicer,

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
Certificate Administrator, Trustee, Paying Agent and Custodian

 

and

 

park bridge lender services llc,
Operating Advisor

 

 

 

TRUST AND SERVICING AGREEMENT
Dated as of October 6, 2016

 

 

 

COMM 2016-667M Mortgage Trust
Commercial Mortgage Pass-Through Certificates

 

 

 

 

 

TABLE OF CONTENTS

       
      Page
       
ARTICLE I
       
DEFINITIONS
       
Section 1.01 Defined Terms   2
Section 1.02 Certain Calculations   74
Section 1.03 Certain Constructions   77
       
ARTICLE II
       
CONVEYANCE OF THE MORTGAGE LOAN;
ORIGINAL ISSUANCE OF CERTIFICATES
 
Section 2.01 Conveyance of the Trust Loan; Assignment of Trust Loan Purchase Agreement   78
Section 2.02 Acceptance by Custodian and the Trustee   84
Section 2.03 Representations, Warranties and Covenants of the Depositor; Repurchase of Trust Loan   86
Section 2.04 Representations, Warranties and Covenants of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Operating Advisor   93
Section 2.05 Execution and Delivery of Certificates; Issuance of Lower-Tier Regular Interests   99
Section 2.06 Miscellaneous REMIC Provisions   99
       
ARTICLE III
       
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
 
Section 3.01 The Master Servicer To Act as Master Servicer; Special Servicer To Act as Special Servicer; Administration of the Whole Loan   100
Section 3.02 Liability of the Master Servicer and the Special Servicer When Sub-Servicing   104
Section 3.03 Collection of Whole Loan Payments   104
Section 3.04 Collection of Taxes, Assessments and Similar Items; Escrow Accounts   104
Section 3.05 Collection Account; Distribution Accounts and Interest Reserve Account   106
Section 3.06 Permitted Withdrawals from the Collection Account and the Distribution Accounts; Trust Ledger   110

 

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Section 3.07 Investment of Funds in the Collection Account, the REO Account, the Lock-Box Accounts, the Cash Collateral Accounts and the Reserve Accounts   119
Section 3.08 Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage   121
Section 3.09 Enforcement of Due-on-Sale Clauses; Assumption Agreements; Defeasance Provisions   125
Section 3.10 Appraisals; Realization upon Defaulted Whole Loan   130
Section 3.11 Custodian to Cooperate; Release of Mortgage File   136
Section 3.12 Servicing Fees, Trustee/Certificate Administrator Fee and Special Servicing Compensation   137
Section 3.13 Reports to the Certificate Administrator; Collection Account Statements   143
Section 3.14 Access to Certain Documentation   149
Section 3.15 Title and Management of REO Property and REO Accounts   158
Section 3.16 Sale of a Specially Serviced Loan or the REO Property   161
Section 3.17 Additional Obligations of the Master Servicer and the Special Servicer; Inspections   166
Section 3.18 Authenticating Agent   167
Section 3.19 Appointment of Custodians   168
Section 3.20 Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and Reserve Accounts   169
Section 3.21 Property Advances   169
Section 3.22 Appointment and Replacement of Special Servicer   173
Section 3.23 Transfer of Servicing Between the Master Servicer and the Special Servicer; Record Keeping; Asset Status Report; Notice of Mezzanine Foreclosure   177
Section 3.24 Special Instructions for the Master Servicer and/or Special Servicer   182
Section 3.25 Certain Rights and Obligations of the Master Servicer and/or the Special Servicer   183
Section 3.26 Modification, Waiver, Amendment and Consents   183
Section 3.27 [Reserved]   185
Section 3.28 [Reserved]   185
Section 3.29 [Reserved]   185
Section 3.30 No Downgrade Confirmation   185
Section 3.31 Certain Co-Lender Matters Relating to the Whole Loan   187
Section 3.32 Appointment and Duties of the Operating Advisor   191
Section 3.33 Credit Risk Retention   195
       
ARTICLE IV
 
DISTRIBUTIONS TO CERTIFICATEHOLDERS
 
Section 4.01 Distributions   195
Section 4.02 Statements to Certificateholders; Reports by Certificate Administrator; Other Information Available to the Holders and Others   201
Section 4.03 Compliance with Withholding Requirements   212

 

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Section 4.04 REMIC Compliance   212
Section 4.05 Imposition of Tax on the Trust Fund   215
Section 4.06 Remittances   216
Section 4.07 P&I Advances and Administrative Advances   216
Section 4.08 Appraisal Reductions and Collateral Deficiency Amounts   221
       
ARTICLE V
 
THE CERTIFICATES
 
Section 5.01 The Certificates   222
Section 5.02 Registration, Transfer and Exchange of Certificates   226
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates   238
Section 5.04 Appointment of Paying Agent   238
Section 5.05 Access to Certificateholders’ Names and Addresses; Special Notices   238
Section 5.06 Actions of Certificateholders   239
Section 5.07 Rule 144A Information   239
       
ARTICLE VI
 
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
DIRECTING HOLDER AND THE OPERATING ADVISOR
 
Section 6.01 Liability of the Depositor, the Master Servicer, the Special Servicer and the Operating Advisor   240
Section 6.02 Merger or Consolidation of the Master Servicer, the Special Servicer, the Depositor or the Operating Advisor   240
Section 6.03 Limitation on Liability of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor and Others   241
Section 6.04 Limitation on Resignation of the Master Servicer, the Special Servicer and the Operating Advisor; Termination of the Master Servicer, the Special Servicer and the Operating Advisor   242
Section 6.05 Rights of the Depositor and the Trustee in Respect of the Master Servicer and the Special Servicer   244
Section 6.06 The Master Servicer or Special Servicer as Owners of a Certificate   245
Section 6.07 Selection and Removal of the Directing Holder   246
Section 6.08 Limitation on Liability of Directing Holder; Acknowledgements of the Certificateholders   248
Section 6.09 Rights and Powers of the Directing Holder   248
Section 6.10 Directing Holder and Operating Advisor Contact with Master Servicer and Special Servicer   250

 

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ARTICLE VII
       
TERMINATION EVENTS
 
Section 7.01 Servicer Termination Events   251
Section 7.02 Trustee to Act; Appointment of Successor   259
Section 7.03 Notification to Certificateholders and Other Persons   261
Section 7.04 Other Remedies of Trustee   261
Section 7.05 Waiver of Past Servicer Termination Events and Operating Advisor Termination Events; Termination   262
Section 7.06 Trustee as Maker of Advances   262
Section 7.07 Termination of the Operating Advisor   262
       
ARTICLE VIII
 
CONCERNING THE TRUSTEE AND CERTIFICATE ADMINISTRATOR
 
Section 8.01 Duties of Trustee and Certificate Administrator   265
Section 8.02 Certain Matters Affecting the Trustee and the Certificate Administrator   268
Section 8.03 Trustee and Certificate Administrator Not Liable for Certificates or the Trust Loan   271
Section 8.04 Trustee and Certificate Administrator May Own Certificates   272
Section 8.05 Payment of Trustee’s and Certificate Administrator’s Fees and Expenses; Indemnification   273
Section 8.06 Eligibility Requirements for Trustee and Certificate Administrator   275
Section 8.07 Resignation and Removal of Trustee and Certificate Administrator   277
Section 8.08 Successor Trustee and Certificate Administrator   278
Section 8.09 Merger or Consolidation of Trustee or Certificate Administrator   279
Section 8.10 Appointment of Co-Trustee or Separate Trustee   279
       
ARTICLE IX
       
TERMINATION
 
Section 9.01 Termination   281
       
ARTICLE X
       
MISCELLANEOUS PROVISIONS
 
Section 10.01 Counterparts   286
Section 10.02 Limitation on Rights of Certificateholders   286
Section 10.03 Governing Law   287
Section 10.04 Waiver of Jury Trial; Consent to Jurisdiction   287
Section 10.05 Notices   287
Section 10.06 Severability of Provisions   290

 

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Section 10.07 Notice to the Depositor and Each Rating Agency   290
Section 10.08 Amendment   292
Section 10.09 Confirmation of Intent   295
Section 10.10 No Intended Third-Party Beneficiaries   296
Section 10.11 Entire Agreement   296
Section 10.12 Third Party Beneficiaries   296
       
ARTICLE XI
       
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
 
Section 11.01 Intent of the Parties; Reasonableness   297
Section 11.02 Succession; Sub-Servicers; Subcontractors   297
Section 11.03 Other Securitization Trust’s Filing Obligations   299
Section 11.04 Form 10-D Disclosure   299
Section 11.05 Form 10-K Disclosure   300
Section 11.06 Form 8-K Disclosure   300
Section 11.07 Annual Compliance Statements   301
Section 11.08 Annual Reports on Assessment of Compliance with Servicing Criteria   302
Section 11.09 Annual Independent Public Accountants’ Servicing Report   304
Section 11.10 Significant Obligor   305
Section 11.11 Sarbanes-Oxley Backup Certification   306
Section 11.12 Indemnification   306
Section 11.13 Amendments   310
Section 11.14 Termination of the Certificate Administrator   310
Section 11.15 Termination of Sub-Servicing Agreements   310
Section 11.16 Notification Requirements and Deliveries in Connection with Securitization of the Companion Loan   310

 

TABLE OF EXHIBITS

Exhibit A-1 Form of Class A Certificate 
Exhibit A-2 Form of Class X-A Certificate 
Exhibit A-3 Form of Class B Certificate 
Exhibit A-4 Form of Class C Certificate 
Exhibit A-5 Form of Class D Certificate 
Exhibit A-6 Form of Class E Certificate 
Exhibit A-7 Form of Class R Certificate 
Exhibit A-8 Form of Class LR Certificate 
Exhibit B Mortgage Loan Schedule 
Exhibit C-1 Form of Transferee Affidavit 
Exhibit C-2 Form of Transferor Certificate 
Exhibit D-1 Form of Investment Representation Letter 
Exhibit D-2 Form of ERISA Representation Letter 
Exhibit D-3 Form of Transferee Certificate for Transfers of any Class of Certificates constituting the EHRI

 

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Exhibit D-4 Form of Transferor Certificate for Transfers of any Class of Certificates constituting the EHRI 
Exhibit E Form of Request for Release 
Exhibit F Securities Legend 
Exhibit G Form of Regulation S Transfer Certificate 
Exhibit H Form of Transfer Certificate for Exchange or Transfer from Rule 144A Global Certificate to Regulation S Global Certificate during the Restricted Period 
Exhibit I Form of Transfer Certificate for Exchange or Transfer from Rule 144A Global Certificate to Regulation S Global Certificate after the Restricted Period 
Exhibit J Form of Transfer Certificate for Exchange or Transfer from Regulation S Global Certificate to Rule 144A Global Certificate 
Exhibit K Form of Distribution Date Statement 
Exhibit L-1-A Form of Investor Certification for Non-Borrower Related Parties 
Exhibit L-1-B Form of Investor Certification for Borrower Related Parties 
Exhibit L-1-C Form of Notice of Conflicted Controlling Class Holder to Certificate Administrator 
Exhibit L-1-D Form of Certification of the Directing Holder 
Exhibit L-2 Form of Investor Certification 
Exhibit L-3 Form of Online Vendor Certification 
Exhibit L-4 Form of CREFC® Certification 
Exhibit M Form of Notification from Custodian 
Exhibit N-1 Form of Closing Date Custodian Certification 
Exhibit N-2 Form of Post-Closing Custodian Certification 
Exhibit O Form of NRSRO Certification 
Exhibit P-1 Form of Transferor Certificate for Transfer of the Excess Servicing Fee Rights 
Exhibit P-2 Form of Transferee Certificate for Transfer of the Excess Servicing Fee Rights 
Exhibit Q Form of Power of Attorney to the Master Servicer and Special Servicer 
Exhibit R Form of Notice of Mezzanine Collateral Foreclosure 
Exhibit S Additional Form 10-D Disclosure 
Exhibit T Additional Form 10-K Disclosure 
Exhibit U Form 8-K Disclosure Information 
Exhibit V Additional Disclosure Notification 
Exhibit W Initial Sub-Servicers 
Exhibit X Form of Backup Certification 
Exhibit Y Form of Operating Advisor Annual Report 
Exhibit Z Form of Certificate Administrator Receipt of EHRI

 

TABLE OF SCHEDULES

 

Schedule I Servicing Criteria to be Addressed in Assessment of Compliance 
Schedule II Initial Companion Loan Holder

 

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Trust and Servicing Agreement, dated as of October 6, 2016, between Deutsche Mortgage & Asset Receiving Corporation, as Depositor, KeyBank National Association, as Master Servicer, AEGON USA Realty Advisors, LLC, as Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Trustee, Paying Agent and Custodian, and Park Bridge Lender Services llc, as Operating Advisor.

 

PRELIMINARY STATEMENT:

 

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

 

The Depositor intends to sell pass-through certificates to be issued hereunder in multiple Classes which in the aggregate will evidence the entire beneficial ownership interest in the Trust Fund consisting primarily of the Trust Loan.

 

The Lower-Tier REMIC will hold the Trust Loan and certain other related assets subject to this Agreement, and will issue (i) the Lower-Tier Regular Interests set forth in the table below (the “Lower-Tier Regular Interests”), as classes of “regular interests” in the Lower-Tier REMIC and (ii) the Class LR Certificates, as the sole class of residual interests in the Lower-Tier REMIC.

 

The Upper-Tier REMIC will hold the Lower-Tier Regular Interests and certain other related assets subject to this Agreement and will issue (i) the Class A, Class X-A, Class B, Class C, Class D and Class E Certificates as Classes of “regular interests” in the Upper-Tier REMIC and (ii) the Class R Certificates, as the sole class of residual interests in the Upper-Tier REMIC.

 

The following table sets forth the Class designation and Certificate Balance or Notional Balance of each Class of Certificates (other than the Class R and Class LR Certificates) (collectively, the “Corresponding Certificates”) and the corresponding Lower-Tier Regular Interest (the “Corresponding Lower-Tier Regular Interest”) and Corresponding Component for each Class of Corresponding Certificates and each Class of Corresponding Lower-Tier Regular Interests.

 

Corresponding
Certificates 

 

Certificate Balance or
Notional Balance 

 

Corresponding Lower-
Tier Regular
Interests(1) 

 

Lower-Tier
Principal Balance 

 

Corresponding
Component 

Class A    $ 116,665,000   LA   $ 116,665,000   XA
Class X-A    $ 116,665,000(1)   N/A   N/A   Class A Certificates
Class B    $ 25,925,000   LB   $ 25,925,000   N/A
Class C    $ 24,770,000   LC   $ 24,770,000   N/A
Class D    $ 30,523,000   LD   $ 30,523,000   N/A
Class E    $ 16,117,000   LE   $ 16,117,000   N/A

 

 
(1)The Lower-Tier Regular Interest and the Component of the Class X-A Certificates that correspond to any particular Class of Certificates also correspond to each other and, accordingly, constitute the (i) “Corresponding Lower-Tier Regular Interest” and (ii) “Corresponding Component” respectively, with respect to each other. The Component Notional Balance for such Corresponding Component of the Class X-A Certificates shall at all times equal the then Lower-Tier Principal Balance of the Corresponding Lower-Tier Regular Interest.

 

 

 

The initial Certificate Balance of each of the Class R and Class LR Certificates is zero. Additionally, the Class R and Class LR Certificates do not have a Notional Balance. The Certificate Balance of any Class of Certificates outstanding at any time represents the maximum amount which holders thereof are entitled to receive as distributions allocable to principal from the cash flow on the Trust Loan and the other assets in the Trust Fund; provided, however, that in the event that amounts previously allocated as Realized Losses to a Class of Certificates in reduction of the Certificate Balance thereof are subsequently recovered (including, without limitation, after the reduction of the Certificate Balance of such Class to zero), such Class may receive distributions in respect of such recoveries in accordance with the priorities set forth in Section 4.01 of this Agreement.

 

As of the Cut-off Date, the Trust Loan has a Stated Principal Balance equal to approximately $214,000,000.

 

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

 

ARTICLE I

DEFINITIONS

 

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

 

30/360 Basis”: The accrual of interest calculated on the basis of a 360-day year consisting of twelve 30-day months.

 

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

 

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

 

A.M. Best”: A.M. Best Company, Inc., or any of its successors in interest. If neither A.M. Best nor any successor remains in existence, “A.M. Best” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person designated by the Depositor, notice of which designation shall be given to the other parties hereto and specific ratings of A.M. Best herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

AB Modified Loan”: Any Corrected Mortgage Loan (1) that became a Corrected Mortgage Loan due to a modification thereto that resulted in the creation of an A/B note structure (or similar structure) and as to which the new junior note(s) did not previously exist or the principal amount of the new junior note(s) was previously part of either an A note held by the

 

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issuing entity or the original unmodified Trust Loan and (2) as to which an Appraisal Reduction Amount is not in effect.

 

Acceptable Insurance Default”: With respect to the Whole Loan, any Default arising when the Loan Documents require that the Borrower must maintain standard extended coverage casualty insurance or other insurance that covers acts of terrorism and the Special Servicer has determined, in accordance with the Servicing Standard, that either (i) such insurance is not available at commercially reasonable rates and the subject hazards are not at the time commonly insured against by for properties similar to the Mortgaged Property and located in or around the geographic region in which the Mortgaged Property is located (but only by reference to such insurance that has been obtained by such owners at current market rates), or (ii) such insurance is not available at any rate.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Additional Trust Fund Expense”: Any extraordinary expense incurred with respect to the Trust Fund (including interest on Advances (to the extent such amounts cannot be paid from Default Interest or late payment fees on the Whole Loan), Special Servicing Fees, Liquidation Fees and Workout Fees) and not otherwise treated as a Realized Loss that would result in the Holders of any Class of Regular Certificates receiving less than the full amount of

 

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principal and/or the Interest Distribution Amount to which they are entitled on any Distribution Date. Expenses incurred as a result of the exercise of the Master Servicer or Special Servicer, as applicable, of any right granted under the Loan Documents to obtain terrorism insurance in the event that the Borrower (i) is not required to purchase such terrorism insurance or (ii) is only required to purchase terrorism insurance up to a cap shall be an Additional Trust Fund Expense.

 

Administrative Advance”: As defined in Section 4.07(c) of this Agreement.

 

Administrative Fee Rate”: The percentage rate per annum equal to the sum of (i) the Servicing Fee Rate, (ii) the Trustee/Certificate Administrator Fee Rate, (iii) the Operating Advisor Fee Rate and (iv) the CREFC® License Fee Rate. The Administrative Fee Rate is equal to 0.02040% per annum and accrues on the same basis as interest accrues on the Whole Loan.

 

Advance”: Any P&I Advance, Property Advance or Administrative Advance.

 

Advance Interest Amount”: Interest at the Advance Rate on the aggregate amount of P&I Advances, Property Advances and Administrative Advances for which the Master Servicer or the Trustee, as applicable, has not been reimbursed for the number of days from the date on which such Advance was made to the date of payment or reimbursement of the related Advance or other such amount, less any amount of interest previously paid on such Advance; provided that if, during any Collection Period in which an Advance was made, the Borrower makes a payment of an amount in respect of which such Advance was made with interest at the Default Rate or a late payment fee, the Advance Interest Amount payable to the Master Servicer or the Trustee shall be paid first, from Default Interest and late payment fees in the manner set forth in Section 9(d) of the Co-Lender Agreement, and then, upon determining in accordance with the Servicing Standard that such Advance Interest Amount is not recoverable from such amounts from other amounts on deposit in the Collection Account.

 

Advance Rate”: A per annum rate equal to the Prime Rate. Interest at the Advance Rate will accrue from (and including) the date on which the related Advance is made or the related expense incurred to (but excluding) the date on which such amounts are recovered out of amounts received on the Trust Loan as to which such Advances were made or servicing expenses incurred or the first Servicer Remittance Date after a determination of non-recoverability, as the case may be, is made; provided that such interest at the Advance Rate will continue to accrue to the extent funds are not available in the Collection Account for such reimbursement of such Advance.

 

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

 

Affected Reporting Party”: As defined in Section 11.12 of this Agreement.

 

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

 

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definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing. The Trustee and the Certificate Administrator may obtain and rely on an Officer’s Certificate of the Master Servicer, the Special Servicer, the Operating Advisor or the Depositor to determine whether any Person is an Affiliate of such party.

 

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

 

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

 

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

 

Annual Budget”: As defined in the Loan Agreement.

 

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

 

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

 

Applicable Rating Agency Criteria”: As defined in Section 3.30(a) of this Agreement.

 

Applicable State and Local Tax Law”: For purposes hereof, the Applicable State and Local Tax Law shall be (a) the tax laws of the State of New York and (b) such state or local tax laws whose applicability shall have been brought to the attention of the Certificate Administrator by either (i) an opinion of counsel delivered to it or (ii) written notice from the appropriate taxing authority as to the applicability of such state or local tax laws.

 

Appraisal”: With respect to the Mortgaged Property, an appraisal prepared by an Independent MAI appraiser with at least five years of experience in appraising properties of like kind, similar size, quality and condition and in the same area.

 

Appraisal Reduction Amount”: For any Distribution Date and for the Whole Loan as of which an Appraisal Reduction Event has occurred, an amount calculated by the Special Servicer by the first Determination Date following the date the Special Servicer obtains the required Appraisal (and thereafter by the first Determination Date following any change in the amounts set forth in the following equation) and receipt of any additional relevant information from the Master Servicer equal to the excess, if any, of (a) the sum of (without duplication) (i) the Stated Principal Balance of the Whole Loan, plus (ii) to the extent not previously advanced by the Master Servicer or the Trustee or the Other Master Servicer or the Other Trustee, all unpaid interest on the Whole Loan at a per annum rate equal to the Trust Loan Rate, plus (iii) all unreimbursed Property Advances and the principal portion of all unreimbursed P&I Advances, and all unpaid interest on Advances at the Advance Rate, in respect of the Trust

 

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Loan or the Companion Loan, plus (iv) any other unpaid Additional Trust Fund Expenses in respect of the Whole Loan, plus (v) all currently due and unpaid real estate taxes, ground rents and assessments and insurance premiums (net of any escrows and reserves therefor) and all other amounts (excluding principal, Default Interest, late charges, penalty charges, exit fees, Prepayment Charges and any similar amounts) due and unpaid with respect to the Whole Loan (which taxes, premiums (net of any escrows and reserves therefor) and other amounts that have not been the subject of an Advance by the Master Servicer or the Trustee, as applicable), over (b) the sum of (without duplication) (i) 90% of the appraised value (net of any prior mortgage liens) of the Mortgaged Property as determined by an Appraisal obtained by the Special Servicer (the costs of which shall be paid by the Master Servicer as a Property Advance), plus (ii) all escrows, letters of credit and reserves (other than escrows and reserves for taxes, ground rents, assessments and insurance), plus (iii) all insurance and casualty proceeds and condemnation awards that constitute collateral for the Whole Loan (whether paid or then payable by any insurance company or government authority); provided that without limiting the Special Servicer’s obligation to order and obtain such Appraisal, if the Special Servicer has not obtained an Appraisal or an Updated Appraisal, as applicable, referred to above within 60 days of the Appraisal Reduction Event (or in the case of an Appraisal Reduction Event occurring by reason of clause (ii) of the definition thereof, within 30 days of such Appraisal Reduction Event), solely for purposes of determining the amount by which P&I Advances made by the Master Servicer or Other Master Servicer with respect to the Trust Loan or the Companion Loan, as applicable, are to be reduced (and not for the purpose of determining Voting Rights or whether a Subordinate Control Period, Subordinate Consultation Period and/or Operating Advisor Consultation Period is in effect or for reducing the Voting Rights of Certificateholders), the Appraisal Reduction Amount shall be deemed to be an amount equal to 25% of the current Stated Principal Balance of the Whole Loan until such time as such Updated Appraisal referred to above is received and the Appraisal Reduction Amount is calculated.

 

Notwithstanding anything herein to the contrary, the aggregate Appraisal Reduction Amount related to the Whole Loan or the REO Property will be reduced to zero as of the date the Whole Loan is paid in full, liquidated, repurchased or otherwise removed from the Trust Fund. In addition, to the extent an Appraisal Reduction Event has occurred, the Whole Loan shall no longer be subject to the Appraisal Reduction Amount if (a) the Whole Loan has become a Corrected Mortgage Loan (if a Servicing Transfer Event had occurred with respect to the Whole Loan) or (b) an Updated Appraisal is obtained and after giving effect thereto, no Appraisal Reduction Amount exists; provided that in case of either of clause (a) or (b), no other Appraisal Reduction Event has occurred and is continuing. The Trust Loan and the Companion Loan shall be treated as a single mortgage loan for purposes of calculating an Appraisal Reduction Amount with respect to the mortgage loans that comprise such Whole Loan. Any Appraisal Reduction Amount in respect of the Whole Loan shall be allocated first, to the Junior Note up to the full outstanding principal balance thereof, and second, to the Senior Notes up to the full outstanding principal balances thereof, pro rata.

 

Appraisal Reduction Event”: With respect to the Whole Loan, on the earliest of the following (i) the date on which the Whole Loan becomes a Modified Mortgage Loan, (ii) the 90th day following the occurrence of any uncured Delinquency in Monthly Payments, (iii) receipt of notice that the Borrower has filed a bankruptcy petition or the date on which a receiver is appointed and continues in such capacity in respect of the Mortgaged Property or the 60th day

 

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after the Borrower becomes the subject of involuntary bankruptcy proceedings and such proceedings are not dismissed in respect of the Mortgaged Property, (iv) the date on which the Mortgaged Property becomes an REO Property and (v) a payment default shall have occurred with respect to the related Balloon Payment; provided, however, that for purposes of clause (v) above, if (a) the Borrower is diligently seeking a refinancing commitment (and delivers a statement to that effect to the Master Servicer within 30 days after the default, which shall promptly deliver a copy to the Special Servicer, the Operating Advisor (during any Operating Advisor Consultation Period) and the Directing Holder (during any Subordinate Control Period or any Subordinate Consultation Period is not in effect)), (b) the Borrower continues to make its Assumed Scheduled Payment, (c) no other Appraisal Reduction Event has occurred and (D) during a Subordinate Control Period, the Directing Holder consents, then an Appraisal Reduction Event will not occur until 60 days beyond the Maturity Date, unless extended by the Special Servicer in accordance with the Loan Documents or this Agreement; and provided, further that if the Borrower has delivered to the Master Servicer, which shall promptly deliver a copy to the Special Servicer, the Operating Advisor (during any Operating Advisor Consultation Period) and the Directing Holder (during any Subordinate Control Period or any Subordinate Consultation Period), on or before the 60th day after the Maturity Date, a refinancing commitment reasonably acceptable to the Special Servicer, and the Borrower continues to make its Assumed Scheduled Payments (and no other Appraisal Reduction Event has occurred with respect to that Whole Loan), an Appraisal Reduction Event will not occur until the earlier of (1) 120 days beyond the related Maturity Date (or extended Maturity Date) and (2) the termination of the refinancing commitment. The Special Servicer shall notify the Master Servicer promptly upon the occurrence of any of the foregoing events if the Whole Loan is a Specially Serviced Loan.

 

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

 

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

 

Assignment of Leases and Rents”: With respect to the Mortgaged Property, any assignment of leases and rents or similar agreement executed by the Borrower, assigning to the mortgagee all of the income, rents and profits derived from the ownership, operation, leasing or disposition of all or a portion of the 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 Management Agreement”: As defined in the Loan Agreement.

 

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 Mortgaged Property is located to reflect of record the sale of the Mortgage.

 

Assumed Scheduled Payment”: If the Trust Loan (including any REO Loan) is delinquent in respect of its Balloon Payment, an amount equal to the sum of (a) the principal portion, if any, of the Monthly Payment that would have been due on the Trust Loan on the related Due Date (or portion thereof not received), based on the constant payment required by the Trust Note or the amortization or payment schedule thereof (as calculated with interest at the

 

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Trust Loan Rate) (if any), assuming such Balloon Payment had not become due, after giving effect to any prior modification, and (b) interest at the Trust Loan Rate minus the Servicing Fee Rate.

 

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

 

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

 

Available Funds”: For any Distribution Date, with respect to the Trust Loan, the sum of (i) all previously undistributed Monthly Payments or other receipts on account of principal and interest on or in respect of the Trust Loan (including Unscheduled Payments and Net REO Proceeds, if any, transferred from an REO Account pursuant to Section 3.15(b) of this Agreement) received by or on behalf of the Master Servicer in the Collection Period relating to such Distribution Date, (ii) all P&I Advances and Administrative Advances made by the Master Servicer or the Trustee, as applicable, in respect of the Trust Loan as of such Distribution Date, (iii) all other amounts received by the Master Servicer in the Collection Period and required to be deposited in the Collection Account by the Master Servicer pursuant to Section 3.05 of this Agreement, (iv) without duplication, any late Monthly Payments on the Trust Loan received after the end of the Collection Period relating to such Distribution Date but prior to the close of business on the Business Day prior to the related Servicer Remittance Date, (v) any Master Servicer Prepayment Interest Shortfall Amount remitted by the Master Servicer to the Collection Account, and (vi) with respect to the Distribution Date in March of each calendar year (or February if the final Distribution Date occurs in such month), the Withheld Amounts then on deposit in the Interest Reserve Account by the Certificate Administrator in accordance with Section 3.05 of this Agreement; but excluding (without duplication) the following (in no order of priority):

 

(a)       all amounts permitted to be used to reimburse the Master Servicer or the Trustee, as applicable, for previously unreimbursed Advances and interest thereon as described in Section 3.06 of this Agreement;

 

(b)       the aggregate amount of the Servicing Fee, the Trustee/Certificate Administrator Fee, the Operating Advisor Fee, the CREFC® License Fee, the Special Servicing Fee, fees for primary servicing functions, Prepayment Interest Excess (net of any Prepayment Interest Shortfall), Net Default Interest, late payment fees (to the extent not applied to the reimbursement of Advance Interest Amounts and/or Additional Trust Fund Expenses as provided in Section 3.06 of this Agreement), Workout Fees, Liquidation Fees, Assumption Fees, Modification Fees, Operating Advisor Consulting Fees, loan service transaction fees, Permitted Special Servicer/Affiliate Fees, defeasance fees, demand fees, beneficiary statement charges and similar fees on the Trust Loan payable to the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee, together with interest on Advances to the extent provided herein, and reinvestment earnings on payments received for the Trust Loan (in the case of all of the foregoing, which the Master Servicer, the Special Servicer, the Certificate Administrator

 

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or the Trustee is entitled to retain as Servicing Compensation, Special Servicing Compensation or other compensation, as applicable), in each case in respect of such Distribution Date;

 

(c)       all amounts representing scheduled Monthly Payments on the Trust Loan due after the related Due Date;

 

(d)       that portion of Net Liquidation Proceeds, Net Insurance Proceeds and Net Condemnation Proceeds with respect to the Trust Loan which represents any unpaid Servicing Fee, Servicing Compensation, Special Servicing Compensation, Trustee/Certificate Administrator Fee, the Operating Advisor Fee and CREFC® License Fee, to which the Master Servicer, the Special Servicer, any Sub-Servicer, the Certificate Administrator, the Trustee and CREFC®, as the case may be, are entitled;

 

(e)       all amounts representing certain fees and expenses, including indemnity amounts, reimbursable or payable to the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator (in all of its capacities under this Agreement), the Custodian or the Trustee and other amounts permitted to be retained by the Master Servicer or withdrawn by the Master Servicer from the Collection Account to the extent expressly set forth in this Agreement (including, without limitation, as provided in Section 3.06 of this Agreement and including any indemnities provided for herein), including interest thereon as expressly provided in this Agreement (to the extent allocable to the Trust Loan);

 

(f)        any interest or investment income on funds on deposit in the Collection Account or any interest on Permitted Investments in which such funds may be invested;

 

(g)       all amounts received with respect to the Trust Loan if previously purchased or repurchased from the Trust Fund pursuant to Section 2.03(e), Section 3.16 or Section 9.01 of this Agreement or the Trust Loan Purchase Agreement or any mezzanine loan intercreditor agreement during the related Collection Period and subsequent to the date as of when the Trust Loan was purchased or repurchased;

 

(h)       the amount reasonably determined by the Certificate Administrator to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05 of this Agreement;

 

(i)        Prepayment Charges; and

 

(j)        with respect to the Distribution Date occurring in (A) January of each calendar year that is not a leap year and (B) February of each calendar year, in each case, unless such Distribution Date is the final Distribution Date, the Withheld Amounts deposited into the Interest Reserve Account by the Certificate Administrator in accordance with Section 3.05(e) of this Agreement.

 

Available Funds will not include any amounts allocable to the Companion Loan under the Co-Lender Agreement.

 

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

 

Base Interest Fraction”: With respect to any Principal Prepayment on the Trust Loan and any of the Class A, Class B, Class C, Class D and Class E Certificates, a fraction (not greater than one) (a) the numerator of which is the greater of zero and the amount, if any, by which (i) the Pass-Through Rate on such Class of Certificates exceeds (ii) the Discount Rate (as provided by the Master Servicer) used in calculating the Prepayment Charges with respect to such Principal Prepayment and (b) the denominator of which is the amount, if any, by which (i) the Trust Loan Rate on the Trust Loan exceeds (ii) the Discount Rate (as provided by the Master Servicer) used in calculating the Prepayment Charges with respect to such Principal Prepayment; provided, that if such Discount Rate is greater than or equal to the Trust Loan Rate on the Trust Loan, then the Base Interest Fraction shall be zero; provided, further, that if such Discount Rate is greater than or equal to the Trust Loan Rate on the Trust Loan, but less than the Pass-Through Rate described in the clause (a)(i) above, then the Base Interest Fraction will be one.

 

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

 

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

 

Borrower”: 667 Madison Avenue DE LLC, a Delaware limited liability company, or the successor in interest to the foregoing under the Loan Agreement.

 

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

 

Borrower Related Party”: Any of (a) the Borrower, the Loan Sponsor, a Manager or a Restricted Holder, (b) any other Person controlling or controlled by or under common control with the Borrower, the Loan Sponsor, a Manager or a Restricted Holder, as applicable, or (c) any other Person owning, directly or indirectly, 25% or more of the beneficial interests in the Borrower, the Loan Sponsor, a Manager or a Restricted Holder, as applicable. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

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

 

Business Day”: Any day other than (i) a Saturday or a Sunday, (ii) a legal holiday in New York, New York, Cleveland, Ohio, Overland Park, Kansas or Minneapolis, Minnesota or the principal cities in which the Master Servicer, the Special Servicer, the Trustee,

 

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the Certificate Administrator or the Operating Advisor conduct servicing, trust administration or surveillance operations, or (iii) day on which the Federal Reserve Bank of New York or banking institutions or savings associations in New York, New York, Cleveland, Ohio, Overland Park, Kansas or Minneapolis, Minnesota or the principal cities in which the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor are located or conduct servicing, trust administration, certificate transfers or surveillance operations are authorized or obligated by law or executive order to be closed.

 

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

 

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

 

Cash Collateral Account Agreement”: Each cash collateral account agreement between the Originator and the Borrower, pursuant to which the Cash Collateral Account, if any, may have been established.

 

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

 

Certificate”: Any Class A, Class X-A, Class B, Class C, Class D, Class E, Class R or Class LR Certificate issued, authenticated and delivered hereunder.

 

Certificate Administrator”: Wells Fargo Bank, National Association, a national banking association, in its capacity as Certificate Administrator, or its successor in interest, or any successor certificate administrator appointed as herein provided.

 

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

 

Certificate Balance”: With respect to any Class of Principal Balance Certificates (a) on or prior to the first Distribution Date, an amount equal to the aggregate initial Certificate

 

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Balance of such Class, as specified in the Preliminary Statement to this Agreement and (b) as of any date of determination after the first Distribution Date, the Certificate Balance of such Class of Certificates on the Distribution Date immediately prior to such date of determination less any distributions allocable to principal and any allocations of Realized Losses made thereon on such prior Distribution Date.

 

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

 

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

 

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

 

Certificateholder”: The Person whose name is registered in the Certificate Register, subject to the following:

 

(a)       except as provided in clauses (b) and (d), solely for the purpose of giving any consent or taking any action pursuant to this Agreement, any Certificate beneficially owned by (x) the Depositor, the Master Servicer, the Special Servicer (in its individual capacity), the Certificate Administrator, the Trustee (in its individual capacity), the Operating Advisor or any Person known to a Responsible Officer of the Certificate Registrar to be an Affiliate of any of the foregoing parties, or (y) any Borrower Related Party 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 or take any such action has been obtained;

 

(b)       for purposes of obtaining the consent of Certificateholders to an amendment of this Agreement, any Certificates beneficially owned by the Master Servicer, the Special Servicer, or the Operating Advisor or an Affiliate thereof shall be deemed to be outstanding for all purposes if such amendment does not relate to the increase in compensation or material reduction in obligations of the Master Servicer, the Special Servicer or the Operating Advisor, respectively, in any material respect, provided that if such amendment does relate to such matters, such Certificates shall be deemed not to be outstanding with respect to such matters;

 

(c)       for purposes of obtaining the consent of Certificateholders (other than the Controlling Class Certificateholders or the Directing Holder) to any action proposed to be taken by the Special Servicer with respect to the Whole Loan, any Certificates beneficially owned by the Special Servicer or an Affiliate thereof shall be deemed not to be outstanding; and

 

(d)       for purposes of providing or distributing any reports, statements or other information required or permitted to be provided to a Certificateholder hereunder, a Certificateholder shall include any Beneficial Owner, or (subject to the execution of an

 

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Investor Certification) any Person identified by a Beneficial Owner as a prospective transferee of a Certificate beneficially owned by such Beneficial Owner, but only if the Certificate Administrator or another party hereto furnishing such report, statement or information has been provided with the name of the Beneficial Owner of the related Certificate or the Person identified as a prospective transferee thereof.

 

Notwithstanding anything to the contrary in this paragraph, the limitations set forth in the foregoing clauses (a), (b), (c) and (d) will not be construed so as to limit or prevent a Controlling Class Certificateholder or the Directing Holder, solely based on it being an Affiliate of the Special Servicer, from exercising any appointment, consent, consultation or any other rights (including, without limitation, Voting Rights) it may have under this Agreement solely in its capacity as Controlling Class Certificateholder or Directing Holder (unless, for the avoidance of doubt, the Controlling Class Certificateholder or Directing Holder is a Borrower Related Party).

 

For purposes of the foregoing, the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Paying Agent or other such Person may rely, without limitation, on a Depository Participant listing from the Depository or statements furnished by a Person that on their face appear to be statements from a Depository Participant to such Person indicating that such Person beneficially owns Certificates.

 

Certificateholder Quorum”: In connection with any solicitation of votes to replace the Special Servicer without the recommendation of the Operating Advisor pursuant to Section 3.22(b), the holders of Principal Balance Certificates evidencing at least 66-⅔% of the aggregate Voting Rights (taking into account Realized Losses and the application of any Appraisal Reduction Amounts and Collateral Deficiency Amounts to notionally reduce the respective Certificate Balances) of all Principal Balance Certificates on an aggregate basis.

 

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

 

Certifying Person”: As defined in Section 11.11 of this Agreement.

 

Certifying Servicer”: As defined in Section 11.07 of this Agreement.

 

Class”: All of the Certificates bearing the same alphabetical or alphanumeric Class designation, each separately designated Lower-Tier Regular Interest.

 

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

 

Class A Pass-Through Rate”: A per annum rate equal to 3.1400%.

 

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

 

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Authenticating Agent on behalf of the Depositor in substantially the form of Exhibit A-3 to this Agreement.

 

Class B Pass-Through Rate”: A per annum rate equal to the Net Mortgage Rate for the related Distribution Date.

 

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

 

Class C Pass-Through Rate”: A per annum rate equal to the Net Mortgage Rate for the related Distribution Date.

 

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

 

Class D Pass-Through Rate”: A per annum rate equal to the Net Mortgage Rate for the related Distribution Date.

 

Class E Certificate”: Any one of the Certificates with a “Class E” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of Exhibit A-6 to this Agreement.

 

Class E Pass-Through Rate”: A per annum rate equal to the Net Mortgage Rate for the related Distribution Date.

 

Class Interest Shortfall”: With respect to any Distribution Date (subsequent to the initial Distribution Date) for any Class of Regular Certificates, the excess, if any, of (i) the Interest Distribution Amount and any Class Interest Shortfall for such Class of Regular Certificates for the immediately preceding Distribution Date over (ii) all distributions of interest made on such Class of Regular Certificates on the immediately preceding Distribution Date. No interest accrues on Class Interest Shortfalls. The Class Interest Shortfall for each Class of Regular Certificates for the initial Distribution Date shall be zero.

 

Class LA Interest”, “Class LB Interest”, “Class LC Interest”, “Class LD Interest” and “Class LE Interest”: Each, a regular interest in the Lower-Tier REMIC entitled to monthly distributions payable thereto pursuant to Section 4.01 of this Agreement.

 

Class LR Certificate”: Any one of the Certificates with a “Class LR” 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-8 to this Agreement. The Class LR Certificates have no Pass-Through Rate, Certificate Balance.

 

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Class R Certificate”: Any one of the Certificates with a “Class R” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of Exhibit A-7 to this Agreement. The Class R Certificates have no Pass-Through Rate or Certificate Balance.

 

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

 

Class X-A Component”: Component XA.

 

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

 

Class X-A Pass-Through Rate”: With respect to any Distribution Date, the Class X Strip Rate at which interest accrues from time to time on the Class X-A Component outstanding immediately prior to the related Distribution Date. The Class X-A Pass-Through Rate for the initial Distribution Date is approximately 0.1445% per annum.

 

Class X Strip Rate”: For any Class of Certificates for any Distribution Date shall be equal to the excess, if any, of (i) the Net Mortgage Rate for such Distribution Date over (ii) the Pass-Through Rate of such Class of Certificates.

 

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

 

Closing Date”: October 26, 2016.

 

Co-Lender Agreement”: The co-lender agreement, dated as of October 6, 2016, between DBNYB as Holder of Note A-1, DBNYB as Holder of Note A-2 and DBNYB as Holder of Note B.

 

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

 

Collateral Deficiency Amount”: With respect to any AB Modified Loan as of any Determination Date, an amount equal to the excess of (i) the Stated Principal Balance of such AB Modified Loan (taking into account the related junior note(s) and any pari passu notes included therein), over (ii) the sum of (solely to the extent allocable to the Trust Loan) (x) the most recent appraised value for the Mortgaged Property, plus (y) solely to the extent not reflected or taken into account in such appraised value and to the extent on deposit with, or otherwise under the control of, the Mortgage Lender as of such Determination Date, any capital or additional collateral contributed by the Borrower at the time the Whole Loan became (and as part of the modification related to) such AB Modified Loan for the benefit of the Mortgaged Property, plus (z) any other escrows or reserves (in addition to any amounts set forth in the immediately preceding clause (y)) held by the Mortgage Lender in respect of such AB Modified

 

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Loan as of such Determination Date. The Special Servicer and the Certificate Administrator will be entitled to conclusively rely on the Master Servicer’s calculation or determination of any Collateral Deficiency Amount.

 

Collection Account”: The trust account or accounts created and maintained by the Master Servicer pursuant to Section 3.05(a) of this Agreement, which shall be entitled “KeyBank National Association, as Master Servicer, on behalf of Wells Fargo Bank, National Association, as Trustee, in trust for the benefit of the Holders of COMM 2016-667M Mortgage Trust Commercial Mortgage Pass-Through Certificates, Collection Account” and/or “KeyBank National Association, as Master Servicer, on behalf of Wells Fargo Bank, National Association, as Trustee, in trust for the benefit of the Holders of COMM 2016-667M Mortgage Trust Commercial Mortgage Pass-Through Certificates, Companion Loan Account” and each of which must be an Eligible Account.

 

Collection Period”: With respect to any Distribution Date, the period that begins immediately following the Determination Date in the calendar month preceding the month in which such Distribution Date occurs (or, in the case of the initial Distribution Date, immediately following the Cut-off Date) and ending at the close of business on such Determination Date in the calendar month in which the Distribution Date occurs.

 

Commission”: The Securities and Exchange Commission.

 

Companion Loan”: That portion of the Whole Loan identified as Note A-2, which is owned by DBNYB as of the date hereof and has an outstanding principal balance as of the Closing Date of $40,000,000.

 

Companion Loan Advance”: With respect to the Companion Loan that is part of an Other Securitization Trust, any advance of delinquent scheduled payments with respect to such Companion Loan made by the Other Master Servicer or Other Trustee with respect to such Other Securitization Trust.

 

Companion Loan Holder”: Any holder of the Companion Loan.

 

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

 

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

 

Companion Loan Service Provider”: With respect to the Companion Loan that has been deposited into a securitization trust, the related Other Trustee, Other Servicer, Other Special Servicer, any sub-servicer and any other Person that makes principal and/or interest advances in respect of such Companion Loan pursuant to the related Other Pooling and Servicing Agreement.

 

Component”: Component XA.

 

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

 

Component XA”: The component of the Class X-A Certificates having a Component Notional Balance equal to the then current Lower-Tier Principal Balance of Lower-Tier Regular Interest LA.

 

Condemnation Proceeds”: Any awards resulting from the full or partial condemnation or any eminent domain proceeding or any conveyance in lieu or in anticipation thereof with respect to the Mortgaged Property by or to any governmental, quasi-governmental authority or private entity with condemnation powers (other than amounts to be applied to the restoration, preservation or repair of the Mortgaged Property or released to the Borrower in accordance with the terms of the REMIC Provisions and the Whole Loan).

 

Conflicted Controlling Class Holder”: The Directing Holder or any Controlling Class Certificateholder, as applicable, that becomes a Borrower Related Party. Immediately upon obtaining actual knowledge of any such party becoming a “Conflicted Controlling Class Holder”, the Directing Holder or Controlling Class Certificateholder, as applicable, shall not be considered a Privileged Person and shall provide notice in the form of Exhibit L-1-C hereto to the Master Servicer, the Special Servicer, the Trustee and the Certificate Administrator, which such notice shall be physically delivered in accordance with Section 10.05 of this Agreement and shall specifically identify the Conflicted Controlling Class Holder. As of the Closing Date, the Directing Holder is not a Conflicted Controlling Class Holder.

 

Controlling Class”: As of any time of determination, the Class E Certificates so long as such Class has an outstanding Certificate Balance (as reduced by any principal payments and Realized Losses allocable to such Class) that is equal to or greater than 25% of the initial Certificate Balance of such Class. If such class does not satisfy the preceding sentence, then there will be no Controlling Class; provided that if at any time the Certificate Balance of each Class of Certificates (other than the Class E Certificates) has been reduced to zero as a result of the allocation of principal payments on the Trust Loan, then the Class E Certificates will be the Controlling Class. No other Class of Certificates will be eligible to act as the Controlling Class or appoint a Directing Holder.

 

Controlling Class Certificateholder”: Each Holder (or Beneficial Owner, if applicable) of the Controlling Class of Certificates, as determined by the Certificate Registrar from time to time in accordance with the terms of Section 6.07(a) of this Agreement.

 

Corporate Trust Office”: The offices of the Trustee and the Certificate Administrator, located at 9062 Old Annapolis Road, Columbia, Maryland 21045, Attention: COMM 2016-667M, or, in the case of any surrender, transfer or exchange at Wells Fargo Center, Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479-0113, Attention: COMM 2016-667M, or the principal trust office of any successor certificate administrator qualified and appointed pursuant to this Agreement.

 

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

 

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

 

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

 

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

 

Credit Risk Retention Rules”: The final rule promulgated to implement the credit risk retention requirements under Section 15G of the Exchange Act, as added by Section 941 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (79 F.R. 77601; Pages: 77740-77766), as such rule may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Department of Treasury, the Federal Reserve System, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the Securities and Exchange Commission and the Department of Housing and Urban Development in the adopting release (79 FR 77601 et seq.) or by the staff of any such agency, or as may be provided by any such agency or its staff from time to time, in each case, as effective from time to time as of the applicable compliance date specified therein.

 

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

 

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

 

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

 

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

 

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

 

CREFC® Comparative Financial Status Report”: The monthly report in “Comparative Financial Status Report” format substantially in the form of and containing the information called for therein for the Whole 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. In connection with preparing the CREFC® Comparative Financial Status Report, the Master Servicer shall process (a) interim financial statements beginning with interim financial statements for the fiscal quarter ending March 2017, and (b) annual financial statements beginning with annual financial statements for the 2017 fiscal year.

 

CREFC® Delinquent Loan Status Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Delinquent Loan Status Report” available as of the Closing Date on the CREFC® Website, or no later than 90 days after its adoption, such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC® for commercial mortgage securities transactions generally.

 

CREFC® Financial File”: The data file in the “CREFC® Financial File” format substantially in the form of and containing the information called for therein for the Whole 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. The initial data for this report shall be provided by the Trust Loan Seller.

 

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

 

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

 

CREFC® Historical Loan Modification and Corrected Mortgage Loan Report”: The monthly report in the “Historical Loan Modification and Corrected Mortgage Loan Report” format substantially in the form of and containing the information called for therein for the Whole 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.

 

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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 (CREFC® IRP)”:

 

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

 

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

 

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

 

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

 

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

 

CREFC® License Fee”: With respect to the Trust Loan (including any REO Loan) for any related Certificate Interest Accrual Period, the amount of interest accrued during such related Certificate Interest Accrual Period at the CREFC® License Fee Rate (adjusted to a monthly rate) on the same balance, in the same manner and for the same number of days as interest at the applicable Trust Loan Rate accrued with respect to such Trust Loan during such related Certificate Interest Accrual Period is computed. Any payments of the CREFC® License Fee shall be made to “CRE Finance Council” and delivered by wire transfer pursuant to the following instructions (or such other instructions as may hereafter be furnished by CREFC® to the Master Servicer in writing at least two Business Days prior to the Servicer Remittance Date):

 

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Account Name: Commercial Real Estate Finance Council (CREFC®)
Bank Name: JPMorgan Chase Bank, National Association
Bank Address: 80 Broadway, New York, NY 10005
Routing Number: 021000021
Account Number: 213597397

 

CREFC® License Fee Rate”: 0.0005% per annum.

 

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

 

CREFC® Loan Periodic Update File”: The monthly data file substantially in the form of, and containing the information called for in, the downloadable form of the “CREFC® Loan Periodic Update File” available and effective from time to time on the CREFC® Website and; provided that each CREFC® Loan Periodic Update File shall be accompanied by a CREFC® Advance Recovery Report, if such report is required for a particular month, and all references herein to “CREFC® Loan Periodic Update File” shall be construed accordingly.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Current Interest Distribution Amount”: With respect to any Distribution Date for any Class of Regular Certificates is equal to the related Regular Interest Distribution Amount.

 

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

 

Custodian”: Any Custodian appointed pursuant to Section 3.19 of this Agreement. If a Custodian is not so appointed, then the Custodian shall be the Certificate Administrator. The Custodian may (but need not) be the Certificate Administrator, the Trustee or the Master Servicer or any Affiliate of the Certificate Administrator, the Trustee or the Master Servicer.

 

Cut-off Date”: October 6, 2016.

 

DBNYB”: Deutsche Bank AG, New York Branch, in its capacity as a lender under the Loan Agreement, and its successors in interest.

 

DBRS”: DBRS, Inc., or any successor thereto. If neither DBRS nor any successor remains in existence, “DBRS” shall be deemed to refer to such other nationally

 

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recognized statistical rating agency or other comparable Person designated by the Depositor, notice of which designation shall be given to the other parties hereto and specific ratings of DBRS herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

Debt Service Coverage Ratio”: As of any date of determination and for any period, the ratio calculated by dividing the net operating income or net cash flow, as applicable, of the Mortgaged Property, for the most recently ended 12-month trailing or one-year period for which data is available from the Borrower (or year-to-date until such time that data for the trailing 12-month period is available), before payment of any scheduled payments of principal and interest on the Trust Loan or Whole Loan, as applicable, but after funding of required reserves and “normalized” information from the CREFC® NOI Adjustment Worksheet for the Mortgaged Property by the Master Servicer or Special Servicer, if applicable, pursuant to Section 3.13 of this Agreement, by the annual debt service required by the Trust Loan or Whole Loan, as applicable. Annual debt service shall be calculated by multiplying the Monthly Payment in effect on such date of determination by 12 (or such fewer number of months for which related information is available).

 

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

 

Default Interest”: Interest accrued on the Whole Loan at the excess of (i) the Default Rate over (ii) the Trust Loan Rate.

 

Default Rate”: The per annum rate at which interest accrues on the Whole Loan following any event of default on the Whole Loan, including a default in the payment of a Monthly Payment or a Balloon Payment.

 

Defaulted Mortgage Loan”: The Whole Loan, if it is delinquent at least 60 days in respect of its Monthly Payments or more than 60 days delinquent in respect of its Balloon Payment, if any, in either case such Delinquency to be determined without giving effect to any grace period permitted by the Loan Documents and without regard to any acceleration of payments under the Whole Loan.

 

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

 

Deficient Exchange Act Deliverable”: With respect to the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator, the Trustee, the Operating Advisor and each Servicing Function Participant retained by it (other than a Sub-Servicer), any item (x) regarding such party, (y) prepared by such party or any registered public accounting firm, attorney or other agent retained by such party to prepare such item 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.

 

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

 

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

 

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

 

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

 

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

 

Determination Date”: With respect to each calendar month commencing in November 2016, the 6th day of such calendar month or, if such 6th day is not a Business Day, then the immediately preceding Business Day.

 

Directing Holder”: The Controlling Class Certificateholder (or other representative) selected or designated, as applicable, in accordance with Section 6.07.

 

Directly Operate”: If the Mortgaged Property becomes an REO Property, the furnishing or rendering of services to the tenants thereof that are not customarily provided to tenants in connection with the rental of space for occupancy only within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or operation of the REO Property, the holding of the REO Property primarily for sale to customers in the ordinary course of a trade or business, or any use of the REO Property in a trade or business conducted by the Trust Fund, or the performance of any construction work on the REO Property other than through an Independent Contractor; provided, however, that the Special Servicer, on behalf of the Trust Fund, shall not be considered to Directly Operate the REO Property solely because the Special Servicer, on behalf of the Trust Fund, establishes rental terms, chooses tenants, enters into or renews leases, deals with taxes and insurance, or makes decisions as to repairs or capital expenditures with respect to the REO Property or takes other actions consistent with Treasury Regulations Section l.856-4(b)(5)(ii).

 

Disclosable Special Servicer Fees”: With respect to the Whole Loan or any REO Property, any compensation and other remuneration (including, without limitation, in the form of commissions, brokerage fees, rebates, and as a result of any other fee-sharing arrangement) received or retained by the Special Servicer or any of its Affiliates that is paid by any Person (including, without limitation, the Trust, the Borrower, a Manager, any guarantor or indemnitor in respect of the Whole Loan and any purchaser of the Whole Loan or the REO Property) in connection with the disposition, workout or foreclosure of the Whole Loan, the management or disposition of the REO Property, and the performance by the Special Servicer or any such Affiliate of any other special servicing duties under this Agreement; provided that any compensation and other remuneration that the Master Servicer or the Certificate Administrator is permitted to receive or retain pursuant to the terms of this Agreement in connection with its respective duties in such capacity as master servicer or certificate administrator under this Agreement shall not be Disclosable Special Servicer Fees.

 

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

 

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

 

Disqualified Organization”: Any of (a) the United States, a State or any political subdivision thereof or any agency or instrumentality of any of the foregoing (other than an instrumentality that is a corporation if all of its activities are subject to tax and, except for FHLMC, a majority of its board of directors is not selected by any such governmental unit), (b) a foreign government, International Organization (as defined below) or agency or instrumentality of either of the foregoing, (c) an organization that is exempt from tax imposed by Code Chapter 1 (including the tax imposed by Section 511 of the Code on unrelated business taxable income) on any excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to the Class R or Class LR Certificates (except certain farmers’ cooperatives described in Section 521 of the Code), (d) rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of the Code, or (e) any other Person so designated by the Certificate Registrar who is unable to provide an Opinion of Counsel to the Certificate Registrar to the effect that any Transfer to such Person will not cause either Trust REMIC to be subject to tax or to fail to qualify as a REMIC at any time that the Certificates are outstanding. For the purposes of this definition, the terms “United States”, “State” and “International Organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.

 

Distribution Accounts”: Collectively, the Upper-Tier Distribution Account and the Lower-Tier Distribution Account, each of which may be a sub-account of a single Eligible Account.

 

Distribution Date”: During each calendar month commencing in November 2016, the fourth Business Day following the Determination Date in such calendar month.

 

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

 

Do Not Hire List”: The list, as may be updated at any time, provided by the Depositor to the Master Servicer, Special Servicer, the Certificate Administrator, Trustee and the Operating 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 trust and servicing agreement relating to any other series of certificates offered by the Depositor.

 

Due Date”: With respect to (i) the Whole Loan on or prior to its Maturity Date, the day of the month set forth in the Note on which each Monthly Payment thereon is scheduled

 

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to be first due and (ii) the Whole Loan after the Maturity Date therefore or any REO Loan, the day of the month set forth in the Note on which each Monthly Payment on the Whole Loan had been scheduled to be first due.

 

Early Termination Notice Date”: Any date as of which the Stated Principal Balance of the Trust Loan is less than 1.0% of the Stated Principal Balance of the Trust Loan as of the Cut-off Date.

 

EHRI”: Any interest in the Trust that satisfies the definition of “eligible horizontal interest” in the Credit Risk Retention Rules. As of the Closing Date, the Class E Certificates shall constitute the EHRI.

 

Eligible Account”: Any of:

 

(i)            an account or accounts

 

(A)       maintained with a depository institution or trust company, (1) the short-term unsecured debt obligations or commercial paper of which are rated at least “A-1” by S&P (or “A-2” by S&P so long as the long-term unsecured debt obligations of such depository institution or trust company are rated at least “BBB” by S&P), “P-1” by Moody’s and “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/or S&P) or such other rating confirmed in a No Downgrade Confirmation) in the case of accounts in which funds are held for 30 days or less, or (2) the long-term unsecured debt obligations of which are rated at least “BBB” by S&P (so long as the short-term unsecured debt obligations of such depository institution or trust company are rated at least “A-2” by S&P), “A2” by Moody’s and “A” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and/or S&P)) in the case of accounts in which funds are held for more than 30 days,

 

(B)       with KeyBank National Association, so long as (1) the short term debt obligations, deposits or commercial paper of KeyBank National Association are rated at least “A-2” by S&P, “P-1” by Moody’s and “R-1(low)” by DBRS (if rated by DBRS or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and S&P)) in the case of letters of credit or accounts in which funds are held for thirty (30) days or less and, (2) the long-term unsecured debt obligations or deposits of KeyBank National Association are rated at least “BBB” by S&P (so long as the short-term unsecured debt obligations of such depository institution or trust company are rated at least “A-2” by S&P), “A2” by Moody’s and “BBB(high)” by DBRS (if rated by DBRS or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and/or S&P)) in the case of letters of credit or accounts in which funds are held for more than thirty (30) days,

 

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(C)       maintained with Wells Fargo Bank, National Association, a wholly owned subsidiary of Wells Fargo & Co., so long as it meets the eligibility standards of the Certificate Administrator pursuant to Section 8.06, or

 

(ii)           a segregated trust account or accounts maintained with the trust department of a federal or state chartered depository institution or trust company (which, subject to the remainder of this clause (ii), may include the Certificate Administrator or the Trustee) acting in its fiduciary capacity which, in either case, has a combined capital and surplus of at least $50,000,000 and is subject to supervision or examination by federal or state authority and to regulations regarding fiduciary funds on deposit substantially similar to Title 12 of the Code of Federal Regulations, Section 9.10(b) and the long term unsecured debt obligations of which are rated at least “A2” by Moody’s,

 

(iii)           such other account or accounts that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i)-(ii) above, with respect to which a No Downgrade Confirmation has been obtained from (i) each Rating Agency and Moody’s for which the minimum ratings set forth in the applicable clause is not satisfied with respect to such account, (ii) Morningstar and (iii) KBRA, or

 

(iv)          any other account for which the Certificate Administrator, the Trustee, the Master Servicer or the Special Servicer, as applicable, receives a No Downgrade Confirmation, which may be an account maintained by or with the Certificate Administrator, the Trustee, the Master Servicer or the Special Servicer.

 

Eligible Accounts may bear interest.

 

Eligible Investor”: Any of (i) a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer to whom notice is given that the offer, sale or transfer is being made in reliance on Rule 144A or (ii) (except with respect to the Class R and Class LR Certificates) an Institutional Accredited Investor that is not a Qualified Institutional Buyer.

 

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

 

Eligible Operating Advisor”: An institution (a) that is an operating advisor on another commercial mortgage-backed securities transaction rated by any Rating Agency or Moody’s, and none of those rating agencies has qualified, downgraded or withdrawn any of the ratings it has assigned to any of those transactions based solely or materially on concerns with respect to the Operating Advisor; (b) that can and agrees to make the representations and warranties of the Operating Advisor set forth in Section 2.04(f) of this Agreement; (c) that is not (and is not affiliated with) the Trust, the Depositor, the Trust Loan Seller, the Initial Purchaser,

 

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the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Directing Holder, or a depositor, a trustee, a certificate administrator, a master servicer or a special servicer with respect to the securitization of the Companion Loan or any of their respective affiliates; (d) that has not and will not be paid by the Special Servicer or any successor special servicer any fees, compensation or other remuneration (x) in respect of its obligations hereunder or (y) for the appointment or recommendation for replacement of a successor special servicer to become the Special Servicer; and (e) that does not and shall not, directly or indirectly, through one or more Affiliates or otherwise, own any interest in any Certificates, the Trust Loan, the Companion Loan or any securities backed by the Companion Loan or otherwise have any financial interest in the securitization transaction to which this Agreement relates, other than in fees from its role as Operating Advisor and except as set forth in Section 3.32.

 

Environmental Report”: The environmental audit report or reports with respect to the Mortgaged Property delivered to the Trust Loan Seller.

 

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

 

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

 

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

 

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

 

Excess Prepayment Interest Shortfall”: With respect to any Distribution Date, any portion of the aggregate Prepayment Interest Shortfalls for such Distribution Date in excess of the sum of (i) the Master Servicer Prepayment Interest Shortfall Amount with respect to such Distribution Date and (ii) any Prepayment Interest Excess with respect to such Distribution Date.

 

Excess Servicing Fee Rate”: With respect to the Trust Loan and the Companion Loan (and the successor REO Loan, if applicable), a rate per annum equal to 0.00125%; provided that such rate shall be subject to reduction at any time following any resignation of a Master Servicer pursuant to Section 6.04 of this Agreement (if no successor is appointed in accordance with Section 6.04 of this Agreement) or any termination of the Master Servicer pursuant to Section 7.01 of this Agreement, to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to appoint a qualified successor Master Servicer (which successor may include the Trustee) that meets the requirements of Section 7.02 of this Agreement.

 

Excess Servicing Fee Right”: With respect to the Trust Loan and the Companion Loan (and the successor REO Loan, if applicable), the right to receive Excess

 

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Servicing Fees. In the absence of any transfer of the Excess Servicing Fee Right, the Master Servicer shall be the owner of such Excess Servicing Fee Right.

 

Excess Servicing Fees”: With respect to the Trust Loan and the Companion Loan (and the successor REO Loan, if applicable), that portion of the Servicing Fee that accrues at a per annum rate equal to the Excess Servicing Fee Rate.

 

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

 

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

 

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

 

Final Asset Status Report”: An Asset Status Report, together with such other data or supporting information provided by the Special Servicer to the Directing Holder, which does not include any communications (other than the related Asset Status Report) between the Special Servicer and the Directing Holder; provided that no Asset Status Report shall be considered a Final Asset Status Report unless (i) the Directing Holder (during any Subordinate Control Period) 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 or consent pursuant to this Agreement in respect of such action, or has been deemed to approve or consent to such action or (ii) the Asset Status Report is otherwise implemented by the Special Servicer in accordance with the terms of this Agreement.

 

Final Recovery Determination”: With respect to the Whole Loan or REO Loan, including after it becomes subject to repurchase by the Trust Loan Seller pursuant to Section 2.03(e) of this Agreement or subject to purchase pursuant to any related mezzanine intercreditor agreement, the recovery of all Insurance Proceeds, Liquidation Proceeds, the related Repurchase Price and other payments or recoveries (including proceeds of the final sale of the REO Property) which the Master Servicer (or if the Whole Loan becomes a Specially Serviced Loan or an REO Loan, the Special Servicer), in its reasonable judgment, as evidenced by a certificate of a Servicing Officer delivered to the Trustee, the Certificate Administrator, the Custodian and the Operating Advisor (and the Master Servicer, if the certificate is from the Special Servicer), expects to be finally recoverable. The Master Servicer shall maintain records, prepared by a Servicing Officer, of each Final Recovery Determination until the earlier of (i) its termination as the Master Servicer hereunder and the transfer of such records to a successor servicer and (ii) five years following the termination of the Trust Fund.

 

Financial Market Publisher”: BlackRock Financial Management, Bloomberg, L.P., Trepp, LLC, Intex Solutions, Inc., Interactive Data Corporation, Markit LLC and Thomson Reuters Corporation, or any successor entities thereof.

 

Fitch”: Fitch Ratings, Inc., or any of its successors in interest.

 

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

 

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

 

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

 

GACC Indemnification Agreement”: The agreement dated as of the Pricing Date, among GACC, the Depositor and the Initial Purchaser.

 

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

 

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

 

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

 

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

 

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

 

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

 

Independent Contractor”: Either (i) any Person that would be an “independent contractor” with respect to the applicable Trust REMIC within the meaning of Section 856(d)(3) of the Code if such Trust REMIC were a real estate investment trust (except that the ownership tests set forth in that section shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of any Class or 35% or more of the aggregate value of all Classes of Certificates); provided that such Trust REMIC does not receive or derive any income from such Person and the relationship between such Person and such Trust REMIC is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5) (except neither the Master Servicer nor the Special Servicer shall be considered to be an Independent Contractor under the definition in this clause (i) unless an Opinion of Counsel (at the expense of the party seeking to be deemed an Independent Contractor) addressed to the Master Servicer or the Special Servicer,

 

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as applicable, the Certificate Administrator and the Trustee has been delivered to the Certificate Administrator to that effect) or (ii) any other Person (including the Master Servicer and the Special Servicer) if the Master Servicer or the Special Servicer, as applicable, on behalf of itself, the Certificate Administrator and the Trustee has received an Opinion of Counsel (at the expense of the party seeking to be deemed an Independent Contractor) to the effect that the taking of any action in respect of the 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 the REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (determined without regard to the exception applicable for purposes of Section 860D(a) of the Code) or cause any income realized in respect of the REO Property to fail to qualify as Rents from Real Property (provided that such income would otherwise so qualify).

 

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

 

Initial Purchaser”: Deutsche Bank Securities Inc., and its successors in interest.

 

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

 

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

 

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

 

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

 

Interest Distribution Amount”: With respect to any Distribution Date and any Class of Regular Certificates, an amount equal to the Current Interest Distribution Amount for such Class and such Distribution Date, less any excess Prepayment Interest Shortfall allocable to such Class.

 

Interest Reserve Account”: The segregated non-interest bearing trust account or sub-account created and maintained by the Certificate Administrator pursuant to Section 3.05(e) of this Agreement; which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wells Fargo Bank, National Association, as Trustee, in trust for the benefit of the Holders of COMM 2016-667M Mortgage Trust Commercial Mortgage Pass-Through Certificates, Interest Reserve Account” and which must be an Eligible Account or a sub-account of an Eligible Account. The Interest Reserve Account shall be an asset of the Lower-Tier REMIC.

 

Interested Person”: As of any date of determination, the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor, the Directing Holder (or any of their respective Affiliates), any Certificateholder, the Companion Loan Holder, the Borrower, a Manager, any Independent Contractor engaged by the Special

 

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Servicer pursuant to Section 3.15 of this Agreement, or any Person known to a Responsible Officer of the Trustee or the Certificate Administrator, or to a Servicing Officer of the Special Servicer, to be an Affiliate of any of them.

 

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

 

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

 

Investor Certification”: A certificate (which may be in electronic form or “click-through format”) representing that such Person executing the certificate is a Certificateholder, a Beneficial Owner or a prospective purchaser of a Certificate and that (i) for purposes of obtaining certain information and notices (including access to information and notices on the Certificate Administrator’s Website) pursuant to this Agreement, such Person (a) is not a Borrower Related Party or (b) is a Borrower Related Party, substantially in the form of Exhibit L-1-A (in the case of clause (a)) or Exhibit L-1-B (in the case of clause (b)) to this Agreement or in the form of an electronic certification contained on the Certificate Administrator’s Website and/or (ii) for purposes of exercising Voting Rights, such Person is not the Depositor, the Certificate Administrator, the Trustee, the Operating Advisor or a Borrower Related Party, substantially in the form of Exhibit L-2 to this Agreement or in the form of an electronic certification contained on the Certificate Administrator’s Website. The Certificate Administrator may require that Investor Certifications are resubmitted from time to time in accordance with its policies and procedures.

 

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

 

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

 

IRS”: The Internal Revenue Service.

 

Junior Note”: Note B in the original principal amount of $71,000,000.

 

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

 

Late Collections”: With respect to the Whole Loan, all amounts received thereon during any Collection Period (or within the related grace period), whether as payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late payments or collections of principal or interest due in respect of the Whole Loan (without regard to any acceleration of amounts due thereunder by reason of default) on a Due Date in a previous Collection Period and not previously recovered. If the Whole Loan becomes an REO Loan, all amounts received in connection with the REO Property during any Collection Period (including any grace period applicable under the original Whole Loan), whether as Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, REO Proceeds or otherwise,

 

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which represent late collections of principal or interest due or deemed due in respect of the REO Loan or the predecessor Whole Loan (without regard to any acceleration of amounts due under the predecessor Whole Loan by reason of default) on a Due Date in a previous Collection Period and not previously recovered. The term “Late Collections” shall specifically exclude Penalty Charges.

 

Liquidation Expenses”: All customary, reasonable and necessary “out of pocket” costs and expenses incurred by the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee in connection with the liquidation of the Whole Loan or the liquidation of the REO Property or the sale of the Whole Loan pursuant to Section 3.16 or Section 9.01 of this Agreement (including, without limitation, legal fees and expenses, committee or referee fees, and, if applicable, brokerage commissions, and conveyance taxes).

 

Liquidation Fee”: A fee payable to the Special Servicer pursuant to Section 3.12(c) of this Agreement with respect to the Whole Loan (if repurchased in accordance with Section 2.03(e) of this Agreement), Specially Serviced Loan or REO Loan (except as specified in the following paragraph), in each case as to which the Special Servicer obtains a full, partial or discounted payoff from the Borrower, a loan purchaser or the Trust Loan Seller, as applicable, or any Liquidation Proceeds with respect thereto (in any case, other than amounts for which a Workout Fee has been paid, or will be payable), equal to the product of 0.500% and the proceeds of such full, partial or discounted payoff or the Net Liquidation Proceeds related to such liquidated or repurchased Whole Loan or Specially Serviced Loan, as the case may be, in each case exclusive of any portion of such full, partial or discounted payoff or Net Liquidation Proceeds that represents Penalty Charges; provided that with respect to any particular liquidation (or partial liquidation), as reduced by the amount of any and all related Offsetting Modification Fees received by the Special Servicer as additional servicing compensation relating to the Specially Serviced Loan, REO Loan or Whole Loan.

 

No Liquidation Fee shall be payable (a) with respect to clause (v) or clause (vii) of the definition of Liquidation Proceeds; (b) in the case of clause (vi) of the definition of Liquidation Proceeds if exercised within 90 days after the first time that such holder’s option to purchase the Whole Loan becomes exercisable, provided, however, that even if the purchase occurs before such expiration the Liquidation Fee will be payable to the extent paid by, and collected from, the related borrower or the mezzanine lender; (c) in the case of a final disposition consisting of the repurchase of the Trust Loan (or the REO Loan, if applicable) by the Trust Loan Seller pursuant to the Trust Loan Purchase Agreement, if the Trust Loan Seller repurchases the Trust Loan within the resolution time period set forth in Section 2.03(e) of this Agreement (and giving effect to any applicable extension period beyond the end of the Initial Resolution Period set forth in Section 2.03(e) of this Agreement); (d) in connection with the purchase of the Trust Loan if it has become a Defaulted Mortgage Loan by the Special Servicer or any Affiliate thereof within 90 days after the transfer of the Defaulted Mortgage Loan to special servicing; (e) in connection with any indemnification payment made by the Trust Loan Seller as a result of a Material Breach or Material Document Defect pursuant to Section 2.03(e), if the Trust Loan Seller makes such indemnification payment within the resolution time period set forth in Section 2.03(e) of this Agreement (and giving effect to any applicable extension period beyond the end of the Initial Resolution Period set forth in Section 2.03(e) of this Agreement); (f) if the Whole Loan becomes a Specially Serviced Loan only because of an event described in clause (a) of the

 

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definition of “Specially Serviced Loan” and the related Liquidation Proceeds are received within three months following the related maturity date as a result of the related Whole Loan being refinanced or otherwise repaid in full (provided that the Special Servicer may collect from the Borrower and retain (x) a liquidation fee, (y) such other fees as are provided for in the Loan Documents, and (z) other appropriate fees in connection with such liquidation); and (g) with respect to an Other Securitization Trust, in connection with (A) a repurchase or replacement of such Companion Loan by the Trust Loan Seller due to a breach of a representation or warranty or a document defect under the related mortgage loan purchase agreement related to the Other Pooling and Servicing Agreement prior to the expiration of the cure period (including any applicable extension thereof) set forth therein or (B) a purchase of such Companion Loan pursuant to a clean-up call or similar liquidation under the related Other Pooling and Servicing Agreement.

 

Liquidation Proceeds”: Cash amounts (other than Insurance Proceeds and Condemnation Proceeds and REO Proceeds) received by or paid to the Master Servicer or the Special Servicer in connection with: (i) the liquidation of the Mortgaged Property or other collateral constituting security for the Defaulted Mortgage Loan, through trustee’s sale, foreclosure sale, disposition of REO Property or otherwise, including a final full, partial or discounted payoff of the Trust Loan, exclusive of any portion thereof required to be released to the Borrower in accordance with applicable law and the terms and conditions of the Note and the Mortgage; (ii) the realization upon any deficiency judgment obtained against the Borrower; (iii) the sale of the Defaulted Mortgage Loan; (iv) a repurchase of the Trust Loan (or REO Loan) by the Trust Loan Seller pursuant to the Trust Loan Purchase Agreement; (v) the purchase of the Trust Loan and all property acquired in respect of the Trust Loan by the Sole Certificateholder, the Special Servicer or the Master Servicer pursuant to Section 9.01 of this Agreement; (vi) if applicable, in connection with any existing mezzanine indebtedness or any mezzanine indebtedness that may exist on a future date, the purchase of the Whole Loan by a mezzanine lender; or (vii) the purchase of the Trust Loan by the Companion Loan Holder.

 

Loan Agreement”: The Loan Agreement, dated as of September 8, 2016, by and between the Borrower, as borrower, and DBNYB, as lender.

 

Loan Documents”: The documents executed or delivered in connection with the origination or any subsequent modification of the Whole Loan or subsequently added to the Mortgage File.

 

Loan Sponsor”: Hartz Financial Corp., a New Jersey corporation, and its successors in interest.

 

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

 

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Lock-Box Agreement”: The lock-box agreement, if any, between the Originator and the Borrower, pursuant to which the Lock-Box Account, if any, may have been established.

 

Lower-Tier Distribution Account”: The segregated non-interest bearing trust account or sub-account created and maintained by the Certificate Administrator pursuant to Section 3.05(b) of this Agreement, which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wells Fargo Bank, National Association, as Trustee, in trust for the benefit of the Holders of COMM 2016-667M Mortgage Trust Commercial Mortgage Pass-Through Certificates, Lower-Tier Distribution Account” and which must be an Eligible Account or a sub-account of an Eligible Account. The Lower-Tier Distribution Account shall be an asset of the Lower-Tier REMIC.

 

Lower-Tier Distribution Amount”: As defined in Section 4.01 of this Agreement.

 

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

 

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

 

Lower-Tier REMIC”: A segregated asset pool within the Trust Fund consisting of the Trust Loan, collections thereon, the Trust’s interest in any REO Property acquired in respect thereof, amounts related thereto held from time to time in the Collection Account and the Lower-Tier Distribution Account, any REO Account, related amounts in the Interest Reserve Account and all other property included in the Trust Fund that is not in the Upper-Tier REMIC.

 

MAI”: Member of the Appraisal Institute.

 

Major Decision”: Any of the following:

 

(a)       any substitution or release of collateral or any acceptance of additional collateral for the Whole Loan (other than substitutions or releases of immaterial and non-income producing real property collateral) except as expressly permitted by the Loan Documents without the consent of the lender;

 

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(b)       any waiver of or determination not to enforce a “due-on-sale” or “due-on-encumbrance” clause (unless such clause is not exercisable under applicable law or such exercise is reasonably likely to result in successful legal action by the Borrower);

 

(c)       any transfer of the Mortgaged Property or any portion of the Mortgaged Property, or any transfer of any direct or indirect ownership interest in the Borrower to the extent lender consent under the Loan Documents is required, except in each case as expressly permitted by the Loan Documents, or in connection with a pending or threatened condemnation;

 

(d)       any consent to the incurrence of additional debt by the Borrower or mezzanine debt by a direct or indirect parent of the Borrower, including modification or waiver of the terms of any document evidencing or securing any such additional debt and of any intercreditor or subordination agreement executed in connection therewith and any waiver of or amendment or modification to the terms of or any such document or agreement, in each case to the extent lender approval is required by the Loan Documents;

 

(e)       any proposed or actual foreclosure upon or comparable conversion (which may include acquisitions of REO Properties) of the ownership of the Mortgaged Property;

 

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

 

(g)       following a default or an event of default with respect to the Whole Loan, any exercise of remedies, including the acceleration of the Whole Loan or initiation of judicial, bankruptcy or similar proceedings under the Loan Documents or with respect to the Borrower or the Mortgaged Property;

 

(h)       any sale or other disposition of the Whole Loan or the Mortgaged Property (including any REO Property) for less than the Repurchase Price;

 

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

 

(j)        any modification, waiver or amendment of an intercreditor agreement, co-lender agreement, participation agreement or similar agreement with any mezzanine lender, holder of the Companion Loan or subordinate debt holder related to the Whole Loan, or an action to enforce rights or remedies with respect thereto, in each case in a manner that materially and adversely affects the Controlling Class (to the extent that neither the Directing Holder, the majority holder of the Controlling Class, nor any affiliate or agent thereof is a holder of the applicable mezzanine loan or any beneficial interest in such mezzanine loan);

 

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(k)       any Manager changes with respect to the Whole Loan, to the extent lender approval is required by the Loan Documents;

 

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

 

(m)      any acceptance of an assumption agreement releasing the Borrower, the guarantor or other obligor from liability under the Whole Loan or the Loan Documents other than as permitted pursuant to the specific terms of such Loan Documents and for which there is no material lender discretion;

 

(n)       any determination of an Acceptable Insurance Default under the Loan Documents;

 

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

 

(p)       any adoption or implementation of the Annual Budget for which lender consent is required under the Loan Documents;

 

(q)       the voting on any plan of reorganization, restructuring or similar plan in the bankruptcy of the Borrower;

 

(r)       the exercise of the rights and powers granted under any intercreditor agreement to the “Senior Lender” or such other similar term as may be set forth in any such intercreditor agreement and/or the “Servicer” referred to therein, if and to the extent such rights or powers affect the priority, payments, consent rights, or security interest with respect to the “Senior Lender” or such other similar term (to the extent that neither the Directing Holder, the majority holder of the Controlling Class, nor any affiliate or agent thereof is the holder of the applicable mezzanine loan or any beneficial interest in such mezzanine loan); and

 

(s)       to the extent not included in clauses (a) through (r) above, (i) any material modification of, or waiver with respect to, any provision of the Loan Agreement (including a mortgage, deed of trust, or other security agreement), (ii) foreclosure upon or comparable conversion of the ownership of the Mortgaged Property, or (iii) the acquisition of the Mortgaged Property by the Trust.

 

Majority Controlling Class Certificateholders”: The Holder(s) of Certificates representing more than 50% of the aggregate Certificate Balance of the Controlling Class.

 

Management Agreement”: With respect to the Mortgaged Property, a property management agreement, if any, by and between a Manager and the Borrower, or any successor property management agreement between such parties.

 

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Manager”: With respect to the Mortgaged Property, any property manager for the Mortgaged Property.

 

Master Servicer”: KeyBank National Association, a national banking association, its successor in interest (in such capacity), or if any successor Master Servicer is appointed as herein provided, such successor Master Servicer or any successor master servicer appointed as herein provided.

 

Master Servicer Prepayment Interest Shortfall Amount”: As defined in Section 3.17(c) of this Agreement.

 

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

 

Master Servicer’s Website”: Shall mean the internet website maintained by the Master Servicer; initially located at “www.keybank.com/Key2CRE”.

 

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

 

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

 

Maturity Date”: The maturity date on October 6, 2026.

 

Mezzanine Loan”: Any mezzanine indebtedness related to the Whole Loan.

 

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

 

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

 

(a)       reduces or delays the amount or timing of any payment of principal or interest due thereon (other than, or in addition to, bringing current Monthly Payments

 

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with respect to the Trust Loan or Companion Loan), including any reduction in the Monthly Payment;

 

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

 

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

 

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

 

Moody’s”: Moody’s Investors Service, Inc., or any of its successors in interest.

 

Morningstar”: Morningstar Credit Ratings, LLC, or any of 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 designated by the Depositor, notice of which designation shall be given to the other parties hereto and specific ratings of Morningstar herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

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

 

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

 

Mortgage Loan Schedule”: The schedule attached as Exhibit B to this Agreement, which schedule shall set forth the following information:

 

(a)       the Trust Loan name;

 

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

 

(c)       the Trust Loan Rate and Whole Loan Rate in effect as of the Cut-off Date;

 

(d)       the original principal balance of the Trust Loan and the Whole Loan;

 

(e)       the outstanding principal balance of the Trust Loan and the Whole Loan as of the Cut-off Date;

 

(f)        the Maturity Date for the Whole Loan;

 

(g)       the Due Date;

 

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

 

(i)        the Servicing Fee Rate, the master servicing fee rate, the primary servicing fee rate, the Trustee/Certificate Administrator Fee Rate, the Operating Advisor Fee Rate, the CREFC© License Fee Rate and the Administrative Fee Rate; and

 

(i)        whether any letter of credit is held by the lender as a beneficiary or is assigned as security for the Whole Loan.

 

Mortgaged Property”: The underlying property securing the Whole Loan including any REO Property, consisting of, among other things, (i) a first priority mortgage in the fee simple interest of the Borrower (as defined herein) in a 24-story, 273,983 square foot, Class A office building with ground floor and basement retail located at 667 Madison Avenue in New York, New York, (ii) a first priority security interest in and, as applicable, assignment of all rents, permits, licenses, leases, contracts, agreements, accounts, receivables, personal property, furniture, fixtures and equipment and any other personal property relating to the Mortgaged Property and (iii) such other collateral customary for a loan of this type.

 

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

 

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

 

Net Insurance Proceeds”: Insurance Proceeds, to the extent such proceeds are not to be applied to the restoration of the Mortgaged Property or released to the Borrower in

 

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accordance with the express requirements of the Loan Documents or other documents included in the Mortgage File or in accordance with prudent and customary servicing practices.

 

Net Liquidation Proceeds”: The Liquidation Proceeds received with respect to the Whole Loan net of the amount of Liquidation Expenses incurred with respect thereto.

 

Net Mortgage Rate”: With respect to any Distribution Date, the rate at which interest accrues on the Trust Loan (net of the Administrative Fee Rate) and excluding Default Interest during the related Whole Loan Interest Accrual Period. The Net Mortgage Rate shall not be reduced by any Operating Advisor Fee Rate following the Operating Advisor’s resignation pursuant to Section 6.04(e) or the termination of the Operating Advisor pursuant to Section 7.07(e). Notwithstanding the foregoing, the Net Mortgage Rate of such Trust Loan or Companion Loan for any Whole Loan Interest Accrual Period will be the annualized rate at which interest would have to accrue in respect of such Trust Loan or Companion Loan on a 30/360 Basis in order to produce the aggregate amount of interest actually accrued in respect of such Trust Loan or Companion Loan at the related Net Mortgage Rate during such Whole Loan Interest Accrual Period; provided, that with respect to each such Trust Loan, the Net Mortgage Rate for the one-month period (i) preceding the Distribution Dates in (a) January and February in each year that is not a leap year or (b) February only in each year that is a leap year (in either case, unless the related Distribution Date is the final Distribution Date) (commencing in 2017), shall be determined net of any Withheld Amounts from that month and (ii) preceding the Due Date in March (or February if the related Distribution Date is the final Distribution Date), shall be determined inclusive of the Withheld Amounts, if applicable, from the immediately preceding February, and, if applicable, January; provided further, that for purposes of calculating Pass-Through Rates, the Net Mortgage Rate shall be determined without regard to any modification, waiver or amendment of the terms of the Whole Loan, whether agreed to by the Master Servicer or the Special Servicer or resulting from a bankruptcy, insolvency or similar proceeding involving the Borrower or otherwise.

 

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

 

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

 

No Downgrade Confirmation” shall mean, with respect to any matter, confirmation in writing (which may be in electronic form and may be in the form of a press release) by each applicable Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then-current rating assigned to any Class of Certificates if then rated by the Rating Agency; provided that a written waiver or other acknowledgment from any Rating Agency indicating its decision not to review the matter for which the No Downgrade Confirmation is sought shall be deemed to satisfy the requirement for the No Downgrade Confirmation from such Rating Agency with respect to such matter. At any time during which no Certificates are rated by a Rating Agency, no No Downgrade Confirmation shall be required from that Rating Agency. With respect to any matter affecting the Companion Loan (if Companion Loan Securities exist),

 

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any No Downgrade Confirmation shall also refer to the nationally recognized statistical rating organizations then rating the securities representing an interest in such loan and such rating organizations’ respective ratings of such securities.

 

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

 

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

 

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

 

Nonrecoverable Administrative Advance”: Any Administrative Advance previously made or proposed to be made in respect of the Trust Loan or REO Loan which, in the reasonable judgment of the Master Servicer, the Special Servicer, in each case in accordance with the Servicing Standard and Section 4.07(d), or the Trustee in its reasonable judgment, as applicable, would not be ultimately recoverable, together with any accrued and unpaid interest thereon, from late payments, Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and other collections on or in respect of the Trust Loan or REO Loan, which shall be evidenced by an Officer’s Certificate as provided by Section 4.07(d) of this Agreement.

 

Nonrecoverable Advance”: Any Nonrecoverable P&I Advance, Nonrecoverable Property Advance or Nonrecoverable Administrative Advance.

 

Nonrecoverable P&I Advance”: Any P&I Advance previously made or proposed to be made in respect of the Trust Loan or REO Loan which, in the reasonable judgment of the Master Servicer, the Special Servicer, in each case in accordance with the Servicing Standard and Section 4.07(d) and Section 4.07(e), or the Trustee in its reasonable judgment, as applicable, would not be ultimately recoverable, together with any accrued and unpaid interest thereon, from late payments, Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and other collections on or in respect of the Trust Loan or REO Loan, which shall be evidenced by an Officer’s Certificate as provided by Section 4.07(d) of this Agreement.

 

Nonrecoverable Property Advance”: Any Property Advance previously made or proposed to be made in respect of the Whole Loan or REO Loan that, as determined by the Master Servicer, the Special Servicer, in each case in accordance with the Servicing Standard and Section 3.21(d), or the Trustee in its reasonable judgment, as applicable, would not be ultimately recoverable, together with any accrued and unpaid interest thereon, from late

 

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payments, Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and other collections on or in respect of the Whole Loan or REO Loan, which shall be evidenced by an officer certificate as provided by Section 3.21(d) of this Agreement.

 

Note”: Collectively, as of any date of determination, the notes or other evidence of indebtedness and/or agreements evidencing the indebtedness of the Borrower under the Whole Loan including any amendments or modifications, or any renewal or substitution note, as of such date.

 

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

 

Notional Balance”: As of any date of determination, with respect to the Class X-A Certificates as a Class, the Class X-A Notional Balance as of such date of determination and with respect to any of the Class X-A Certificates, the product of the Percentage Interest evidenced by such Certificate and the Class X-A Notional Balance as of such date of determination.

 

NRSRO”: Any nationally recognized statistical ratings organization within the meaning of Section 3(a)(62) of the Exchange Act.

 

NRSRO Certification”: A certification (a) executed by a NRSRO in favor of the 17g-5 Information Provider substantially in the form attached hereto as Exhibit O or (b) provided electronically and executed by an NRSRO by means of a “click-through” confirmation on the 17g-5 Information Provider’s Website.

 

Offering Circular”: That certain Offering Circular, dated the Pricing Date, relating to the offering of the Certificates.

 

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

 

Offsetting Modification Fees”: With respect to the Whole Loan or REO Loan and with respect to the Workout Fee or Liquidation Fee payable by the Trust, any and all Modification Fees collected by the Special Servicer as additional servicing compensation, but only to the extent that (1) such Modification Fees were earned and collected by the Special Servicer (A) in connection with the workout or liquidation (including partial liquidation) of a Specially Serviced Loan or REO Loan as to which the subject Workout Fee or Liquidation Fee

 

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became payable or (B) in connection with any workout of a Specially Serviced Loan that closed within the prior 18 months (determined as of the closing day of the workout or liquidation as to which the subject Workout Fee or Liquidation Fee became payable) and (2) such Modification Fees were earned in connection with a modification, restructure, extension, waiver or amendment of the Whole Loan or REO Loan at a time when the Whole Loan or REO Loan was a Specially Serviced Loan.

 

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

 

Operating Advisor Annual Report”: As defined in Section 3.32(d)(iv) of this Agreement.

 

Operating Advisor Consulting Fee”: A fee for each Major Decision on which the Operating Advisor has consulting rights equal to $10,000 with respect to any Mortgage Loan or such lesser amount as the Borrower agrees to pay, payable pursuant to Section 3.06 of this Agreement; provided, no such fee shall be payable unless paid by the Borrower. The Operating Advisor may in its sole discretion reduce the Operating Advisor Consulting Fee with respect to any Major Decision. The Master Servicer or Special Servicer, as applicable, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the Borrower if it determines that such full or partial waiver is in accordance with the Servicing Standard; provided, that the Master Servicer or the Special Servicer, as applicable, shall consult with the Operating Advisor prior to any such waiver or reduction.

 

Operating Advisor Consultation Period”: Any period when the aggregate Certificate Balance of the Class(es) of Certificates constituting the EHRI (taking into account the application of any Appraisal Reduction Amounts and Collateral Deficiency Amounts to notionally reduce such aggregate Certificate Balance of the Class(es) of Certificates constituting the EHRI) is less than 25% of the initial aggregate Certificate Balance of Class(es) of Certificates constituting the EHRI.

 

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

 

Operating Advisor Fee Rate”: For each Interest Accrual Period, a per annum rate equal to 0.0047% with respect to the Trust Loan. At any time there is no Operating Advisor, the Operating Advisor Fee Rate shall be 0%.

 

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Operating Advisor Standard”: As defined in Section 3.32(b) of this Agreement.

 

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

 

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

 

Originator”: Deutsche Bank AG, New York Branch, in its capacity as originator of the Trust Loan under the Loan Agreement.

 

Other Asset Representations Reviewer”: The applicable other “asset representations reviewer” under an Other Pooling and Servicing Agreement relating to the Companion Loan.

 

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

 

Other Exchange Act Reporting Party”: With respect to any Other Securitization Trust that is subject to the reporting requirements of the Exchange Act, the trustee, certificate administrator, master servicer, special servicer or depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or filing of Form 8-K, Form 10-D and Form 10-K with respect to such Other Securitization Trust, as identified in writing to the parties to this Agreement; and, with respect to any Other Securitization Trust that is not subject to the reporting requirements of the Exchange Act and for the purposes of Sections 11.7, 11.8, 11.9 and 11.16 only, the trustee, certificate administrator, master servicer, special servicer or depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or dissemination of periodic distribution date statements or similar reports, as identified in writing to the parties to this Agreement.

 

Other Operating Advisor”: The applicable other “operating advisor” or “trust advisor” under the Other Pooling and Servicing Agreement relating to the Companion Loan.

 

Other Pooling and Servicing Agreement”: The pooling and servicing agreement or other comparable agreement governing the creation of any Other Securitization Trust and the issuance of securities backed by the assets of such Other Securitization Trust.

 

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

 

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Other Servicer”: The applicable other “master servicer” under an Other Pooling and Servicing Agreement relating to the Companion Loan.

 

Other Special Servicer”: The applicable other “special servicer” under an Other Pooling and Servicing Agreement relating to the Companion Loan.

 

Other Trustee”: The applicable other “trustee” under an Other Pooling and Servicing Agreement relating to the Companion Loan.

 

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

 

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

 

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

 

Pass-Through Rate”: With respect to each Class of Regular Certificates, the rate for such Class as set forth below.

 

Class

 

Pass-Through Rate

Class A   Class A Pass-Through Rate
Class X-A   Class X-A Pass-Through Rate
Class B   Class B Pass-Through Rate
Class C   Class C Pass-Through Rate
Class D   Class D Pass-Through Rate
Class E   Class E Pass-Through Rate

 

With respect to each Class of Lower-Tier Regular Interests, the Net Mortgage Rate.

 

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

 

PCAOB”: The Public Company Accounting Oversight Board.

 

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

 

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

 

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the initial denomination of such Certificate divided by the initial Certificate Balance or Notional Balance, as applicable, of such Class of Certificates. With respect to any Class R or Class LR Certificate, the percentage interest is set forth on the face thereof.

 

Performing Loan”: The Whole Loan if it is not a Specially Serviced Loan or REO Loan.

 

Permitted Investments”: Any one or more of the following obligations or securities payable on demand or having a fixed principal amount due on a scheduled maturity date on or before the Business Day preceding the date upon which such funds are required to be drawn (and which do not include any embedded options, unless full payment of principal will be paid in cash upon the exercise of such option), regardless of whether issued by the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee or any of their respective Affiliates and having at all times the required ratings, if any, provided for in this definition, unless each Rating Agency shall have provided a No Downgrade Confirmation relating to the Certificates and the Companion Loan Securities:

 

(a)       direct obligations of, and obligations fully guaranteed as to timely payment of principal and interest by, the United States of America, Fannie Mae, Freddie Mac or any agency or instrumentality of the United States of America, the obligations of which are backed by the full faith and credit of the United States of America that mature in one (1) year or less from the date of acquisition; provided that any obligation of, or guarantee by, any agency or instrumentality of the United States of America shall be a Permitted Investment only if such investment would not result in the downgrading, withdrawal or qualification of the then-current rating assigned by each Rating Agency to any Certificate as evidenced in writing, other than (a) unsecured senior debt obligations of the U.S. Treasury (direct or fully funded obligations), U.S. Department of Housing and Urban Development public housing agency bonds, Federal Housing Administration debentures, Government National Mortgage Association guaranteed mortgage-backed securities or participation certificates, RefCorp debt obligations and SBA-guaranteed participation certificates and guaranteed pool certificates and (b) Farm Credit System consolidated systemwide bonds and notes, Federal Home Loan Banks’ consolidated debt obligations, Freddie Mac debt obligations, and Fannie Mae debt obligations (1) rated at least “A-1” by S&P, if such obligations mature in 60 days or less, or rated at least “AA-”, “A-1+” or “AAAm” by S&P, if such obligations mature in 365 days or less, (2)(A) if it has a term of 30 days or less, the short-term obligations of which are rated in the highest short-term rating category by Moody’s or the long-term obligations of which are rated at least “A2” by Moody’s, (B) if it has a term of three months or less, but more than 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 “A2” by Moody’s, (C) if it has a term of six months or less, but more than three months, the short-term obligations of which are rated in the highest short-term rating category by Moody’s and the long-term obligations of which are rated at least “Aa3” by Moody’s, and (D) if it has a term of more than six 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, and (3)(A) the short term obligations of which bank or trust company are rated in the highest short term debt rating category of DBRS (or, if not rated

 

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by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and S&P)) and (B) if it has a term in excess of six months, the long term debt obligations of which are rated “AAA” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and S&P));

 

(b)       repurchase agreements on obligations specified in clause (a) of this definition, with a party agreeing to repurchase such obligations (A) in the case of such investments with maturities of 30 days or less, the short term obligations of which are rated at least “A-1+” by S&P (or “A-1” by S&P, if the obligations mature within 60 days) and “P-1” by Moody’s and the long term obligations of which are rated at least “A2” by Moody’s (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities), (B) in the case of such investments with maturities of three months or less, but more than 30 days, the short term obligations of which are rated at least “A-1+” by S&P (or “A-1” by S&P, if the obligations mature within 60 days) and “P-1” by Moody’s (or the long term obligations of which are rated at least “A2” by Moody’s (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities), (C) in the case of such investments with maturities of six months or less, but more than three months, the short term obligations of which are rated at least in the highest short term rating category by Moody’s and the long term obligations of which are rated at least “AAA” (or the equivalent) by S&P and at least “Aa3” by Moody’s (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities), and (D) in the case of such investments with maturities of more than six months (but less than 365 days), the short term obligations of which are rated at least “P-1” by Moody’s and the long term obligations of which are rated at least “AAA” (or the equivalent) by S&P, or if not rated by S&P, as is otherwise acceptable to such Rating Agency, and “Aaa” by Moody’s and (E) the short term obligations of which bank or trust company are rated in the highest short term debt rating category of DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and S&P)) and, if it has a term in excess of six months, the long term debt obligations of which are rated “AAA” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and S&P)) (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities);

 

(c)       federal funds, unsecured uncertificated certificates of deposit, time deposits, demand deposits and bankers’ acceptances of any bank or trust company organized under the laws of the United States or any state thereof, (1)(A) in the case of such investments with maturities of 30 days or less, the short term obligations of which are rated at least “A-1+” by S&P (or “A-1” by S&P, if the obligations mature within 60 days) and “P-1” by Moody’s (or, with respect to Moody’s, the long term obligations of which are rated at least “A2” by Moody’s) (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities), (B) in the case of such investments

 

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with maturities of three months or less, but more than 30 days, the short term obligations of which are rated at least “A-1+” by S&P (or “A-1” by S&P, if the obligations mature within 60 days) and in the highest short-term debt rating category by Moody’s (or, with respect to Moody’s, the long-term obligations of which are rated at least “A2” by Moody’s) (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities), (C) in the case of such investments with maturities of six months or less, but more than three months, the short term obligations of which are rated at least “A-1+” by S&P and the highest short-term debt rating category by Moody’s and the long-term obligations of which are rated at least “Aa3” by Moody’s (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities), and (D) in the case of such investments with maturities of more than six months (but less than 365 days), the short term obligations of which are rated at least in the highest short term rating category of Moody’s and the long-term obligations of which are rated at least “AAA” (or the equivalent) by S&P and “Aaa” by Moody’s or otherwise acceptable to such Rating Agency, and (2)(A) in the case of such investments with maturities of three months or less, the short term obligations of which bank or trust company are rated “R-1(low)” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and S&P)) and (B) in the case of such investments with maturities in excess of three months, the long term debt obligations of which are rated “AAA” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)) (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities);

 

(d)       commercial paper of any corporation incorporated under the laws of the United States or any state thereof (or of any corporation not so incorporated, provided that the commercial paper is United States Dollar denominated and amounts payable thereunder are not subject to any withholding imposed by any non-United States jurisdiction) (1)(A) in the case of such investments with maturities of 30 days or less, the short term obligations of which are rated at least “A-1+” by S&P (or “A-1” by S&P, if the obligations mature within 60 days) and “P-1” by Moody’s and the long term obligations of which are rated at least “A2” by Moody’s (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities), (B) in the case of such investments with maturities of three months or less, but more than 30 days, the short term obligations of which are rated at least “A-1+” by S&P (or “A-1” by S&P, if the obligations mature within 60 days) and “P-1” by Moody’s (or, with respect to Moody’s, the long-term obligations of which are rated at least “A2” by Moody’s) (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities), (C) in the case of such investments with maturities of six months or less, but more than three months, the short term obligations of which are rated at least “A-1+” by S&P and “P-1” by Moody’s (or, with respect to Moody’s, the long-term obligations of which are rated at least “Aa3” by Moody’s) (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any

 

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Companion Loan Securities), and (D) in the case of such investments with maturities of more than six months (but less than 365 days), the long-term obligations of which are rated at least “AAA” (or the equivalent) by S&P and “Aaa” by Moody’s (or, with respect to Moody’s, the short term obligations of which are rated at least in the highest short-term debt rating category of Moody’s) or, if not so rated by S&P, as is otherwise acceptable to such Rating Agency, and (2)(A) in the case of such investments with maturities of three months or less, the short term obligations of which bank or trust company are rated in the “R-1(low)” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and S&P)) and (B) in the case of such investments with maturities in excess of three months, the long term debt obligations of which are rated “AAA” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)) (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities);

 

(e)       (1) units of taxable money market mutual funds, issued by regulated investment companies, which seek to maintain a constant net asset value per share (including the Federated Prime Obligation Money Market Fund, US Bank Long Term Eurodollar Sweep or the Wells Fargo Advantage Heritage Money Market Fund) so long as any such fund is rated at least “AAAm” by S&P, is rated at least “Aaa-mf” by Moody’s and has the highest rating obtainable for taxable money market mutual funds from DBRS (or, if not rated by DBRS, an equivalent rating (or higher) by at least two (2) NRSROs (which may include any of the Rating Agencies) or otherwise acceptable to such Rating Agency, in any such case, as confirmed in a No Downgrade Confirmation) or otherwise acceptable to such Rating Agency, in any such case, as confirmed in a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities), and (2) units of money market funds that (A) have substantially all of its assets invested continuously in the types of investments referred to in clause (a) above, (B) has net assets of not less than $5,000,000,000, and (C) is rated at least “AAAm” by S&P, is rated at least “Aaa-mf” by Moody’s and has the highest rating obtainable for money market funds from DBRS (or, if not rated by DBRS, an equivalent rating (or higher) by at least two (2) NRSROs (which may include any of the Rating Agencies) or otherwise acceptable to such Rating Agency, in any such case, as confirmed in a No Downgrade Confirmation); and

 

(f)       any other demand, money market or time deposit, demand obligation or any other obligation, security or investment, provided that the Master Servicer, Special Servicer or Certificate Administrator, as applicable, has received a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities;

 

provided, that no instrument or security shall be a Permitted Investment if (a) (i) such instrument or security evidences a right to receive only interest payments or (ii) the right to receive principal and interest payments derived from the underlying investment provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment, (b) it may be redeemed of a price below the purchase price, or (c) if such instrument or security is rated by S&P, such instrument or security has a qualified rating (i.e., one with a qualifying suffix), other than (x) a rating with a regulatory indicator, such as the “(sf)” subscript, (y) an unsolicited rating,

 

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or (z) a rating with a “(p)” or “(i)” subscript that takes into consideration the credit risk of the principal, and, if applicable, interest portion of such instrument or security. No Permitted Investment may be purchased at a price in excess of par. No Permitted Investment may be sold prior to maturity if such sale would result in a loss of principal.

 

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

 

Permitted Transferee”: With respect to a Class R or Class LR Certificate, any Person or agent thereof that is a Qualified Institutional Buyer or an Affiliated Person, other than (a) a Disqualified Organization, (b) a Person that is a Disqualified Non-U.S. Person, (c) 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 or Class LR Certificate to such Person will not cause either Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding, (d) an entity treated as a domestic partnership for U.S. federal income tax purposes, one or more of the direct or indirect beneficial owners (other than through a U.S. corporation) of which is (or is permitted under the applicable partnership agreement to be) a Disqualified Non-U.S. Person or (e) a U.S. Person with respect to whom income on the Class R or Class LR Certificate is attributable to a fixed base or foreign permanent establishment, within the meaning of an applicable income tax treaty, of such transferee or any other U.S. Person.

 

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

 

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

 

Platform-Level Basis”: Only as used in connection with the Operating Advisor Annual Report, the term “platform-level basis” refers to the Special Servicer’s performance of its duties as they relate to the resolution and/or liquidation of a Specially Serviced Loan, taking into account the Special Servicer’s specific duties under this Agreement as well as the extent to which those duties were performed in accordance with the Servicing Standard, with reasonable consideration by the Operating Advisor of any assessment of compliance report, attestation report, Asset Status Report and other information delivered to the Operating Advisor by the Special Servicer (other than any communications between the Directing Holder and the Special Servicer that would be Privileged Information) pursuant to the provisions of this Agreement.

 

Prepayment Assumption”: The assumption that the Trust Loan does not prepay prior to its Maturity Date.

 

Prepayment Charge”: With respect to the Whole Loan, any yield maintenance premium, prepayment premium, spread maintenance premium or similar fee required to be paid under the Loan Documents in connection with a Principal Prepayment in respect of the Whole Loan. Any breakage costs payable to the “lender” (as such term is used in the related Loan

 

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Documents) under the Trust Loan and actually collected from the Borrower in connection with a Principal Prepayment during or after a “lockout” period shall constitute Prepayment Charges.

 

Prepayment Interest Excess”: With respect to any Distribution Date, if the Whole Loan was subject to Principal Prepayment in full or in part, or as to which Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds, as applicable, were received by the Master Servicer or Special Servicer for application to the Whole Loan, in each case after the Due Date in the related Collection Period and on or prior to the close of business on the Business Day prior to the related Servicer Remittance Date, the aggregate amount of interest accrued at the Net Mortgage Rate on the amount of such Principal Prepayments, Insurance Proceeds, Liquidation Proceeds and Condemnation Proceeds after the Due Date in the related Collection Period and accruing in the manner set forth in the Loan Documents, to the extent such interest is collected by the Master Servicer or the Special Servicer (without regard to any Prepayment Charge actually collected).

 

Prepayment Interest Shortfall”: With respect to any Distribution Date, if the Whole Loan was subject to a Principal Prepayment in full or in part which did not include a full month’s interest, or as to which Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds, as applicable, were received by the Master Servicer or Special Servicer for application to the Whole Loan, in each case on or prior to the Due Date in the related Whole Loan Interest Accrual Period preceding such Distribution Date, the shortfall in the amount of interest that would have accrued and been payable through the end of the Whole Loan Interest Accrual Period at the Net Mortgage Rate on the amount of such Principal Prepayment, Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds had such Principal Prepayment, Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds not been made (without regard to any Prepayment Charges actually collected).

 

Pricing Date”: October 12, 2016.

 

Prime Rate”: The “Prime Rate” as published in the “Money Rates” section of The Wall Street Journal, Eastern edition (or, if such section or publication is no longer available, such other comparable publication as determined by the Certificate Administrator in its reasonable discretion) as may be in effect from time to time, or, if the “Prime Rate” no longer exists, such other comparable rate (as determined by the Certificate Administrator in its reasonable discretion) as may be in effect from time to time. The Certificate Administrator shall notify in writing the Master Servicer and the Special Servicer with regard to any determination of the Prime Rate in accordance with the parenthetical in the preceding sentence.

 

Principal Balance Certificates”: The Class A, Class B, Class C, Class D and Class E Certificates.

 

 

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Principal Distribution Amount”: For any Distribution Date, an amount equal to (i) the sum of (without duplication and to the extent not already included in the Principal Distribution Amount, if any, for the prior Distribution Date and other than amounts received with respect to the Trust Loan as recoveries of Realized Losses):

 

(A)      the principal component, if any, of the scheduled Monthly Payment (other than any Balloon Payment) due on the Trust Loan on the Due Date in the related Collection Period (if received during the related Collection Period or advanced);

 

(B)       the principal component, if any, of the Assumed Scheduled Payment deemed due on the Due Date in the related Collection Period (if received during the related Collection Period or advanced) with respect to the Trust Loan if it is delinquent in respect of its Balloon Payment;

 

(C)       the Stated Principal Balance of the Trust Loan if it was, during the Collection Period, repurchased from the Trust Fund in connection with a Breach or Defect pursuant to Section 2.03 of this Agreement, purchased from the Trust Fund pursuant to Section 3.16 of this Agreement, or purchased from the Trust Fund pursuant to Section 9.01 of this Agreement;

 

(D)      the portion of Unscheduled Payments allocable to principal of the Trust Loan received during the Collection Period;

 

(E)       the principal component of any Balloon Payment and any other principal payment on the Trust Loan received on or after the Maturity Date thereof, to the extent received during the Collection Period;

 

(F)       all other Principal Prepayments on the Trust Loan received in the related Collection Period;

 

(G)      any indemnification payment made by the Trust Loan Seller as a result of a Material Breach or Material Document Defect pursuant to Section 2.03(e) of this Agreement to the extent that such amount was transferred into the Collection Account pursuant to Section 3.05(a)(xi) of this Agreement during the related Collection Period;

 

(H)      any other full or partial recoveries in respect of principal of the Trust Loan, including Net Insurance Proceeds, Net Liquidation Proceeds, Net Condemnation Proceeds and Net REO Proceeds received in the related Collection Period; and

 

(I)        the principal component of any late Monthly Payments or Unscheduled Payments on the Trust Loan received after the end of the Collection Period relating to such Distribution Date but prior to the close of business on the Business Day prior to the related Servicer Remittance Date; as reduced by

 

(ii) the principal portion of all previously unreimbursed P&I Advances that are paid or reimbursed from the principal collections on the Trust Loan described in clause (i) of this definition.

 

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

 

Principal Prepayment”: Any payment of principal made by the Borrower on the Whole Loan which is received in advance of its scheduled Due Date and which is not accompanied by an amount of interest representing the full amount of scheduled interest due with respect to the related Whole Loan Interest Accrual Period.

 

Privileged Information”: Any (i) correspondence or other communications between the Directing Holder (or the Controlling Class), on the one hand, and the Special Servicer (or the Master Servicer), on the other hand, related to the Whole Loan if the Whole Loan becomes a Specially Serviced Loan or the exercise of the consent or consultation rights of the Directing Holder under this Agreement and the Co-Lender Agreement, (ii) strategically sensitive information that the Special Servicer has reasonably determined could compromise the Trust’s position in any ongoing or future negotiations with the Borrower or other interested party and (iii) information subject to attorney-client privilege; provided that the summary of any Final Asset Status Report prepared pursuant to this Agreement is deemed not to be Privileged Information (although no such summary shall be made available to any Borrower Related Party).

 

Privileged Information Exception”: With respect to any Privileged Information, at any time (a) such Privileged Information becomes generally available and known to the public other than as a result of a disclosure directly or indirectly by the party restricted from disclosing such Privileged Information (the “Restricted Party”), (b) it is reasonable and necessary for the Restricted Party to disclose such Privileged Information in working with legal counsel, auditors, taxing authorities or other governmental agencies, (c) such Privileged Information was already known to such Restricted Party and not otherwise subject to a confidentiality obligation and/or (d) the Restricted Party is (in the case of the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, as evidenced by an opinion of counsel (which will be an additional expense of the Trust ) delivered to each of the Master Servicer, the Special Servicer, the Directing Holder, the Operating Advisor, the Certificate Administrator and the Trustee), required by law, rule, regulation, order, judgment or decree to disclose such information.

 

Privileged Person”: A party to this Agreement, the Trust Loan Seller, a Rating Agency, a designee of the Depositor (including any financial market publisher), any Affiliate of the Operating Advisor designated by the Operating Advisor, the Initial Purchaser, the Directing Holder (but only during any Subordinate Control Period and any Subordinate Consultation Period), the Companion Loan Holder, any other person who delivers to the Certificate Administrator an Investor Certification (which may be provided by the Certificate Administrator upon request) and any NRSRO that delivers an NRSRO Certification to the 17g-5 Information Provider substantially in the form of Exhibit O to this Agreement, which Investor Certification and NRSRO Certification may be submitted electronically via the Certificate Administrator’s Website in a “click-through” format. For purposes of obtaining information or access to the Certificate Administrator’s Website, any Borrower Related Party shall be prohibited from obtaining such information or access pursuant to the terms of this Agreement (other than the Distribution Date Statement and the “risk retention special notices” tab) and will not be considered Privileged Persons. For purposes of receiving any information or report from the Certificate Administrator’s Website, other than Distribution Date Statements and the “risk

 

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retention special notices” tab only, any Borrower Related Party (as evidenced by an Investor Certification) will be deemed to not be a Privileged Person.

 

Prohibited Party”: Any proposed Servicing Function Participant (i) that is listed on the Depositor’s Do Not Hire List or (ii) for which the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee that seeks to retain such Servicing Function Participant has actual knowledge obtained by written notice or through actual experience that such party at any point prior to such hiring, assignment or transfer failed to comply with the Servicing Function Participant’s reporting obligations under Regulation AB with respect to any other securitization.

 

Property Advance”: Any advance made by the Master Servicer or the Trustee, as applicable, in respect of Property Protection Expenses or any expenses incurred to protect, preserve and enforce the security for the Whole Loan or to pay taxes and assessments or insurance premiums with respect to the Mortgaged Property, to the extent the making of any such advance is specifically provided for in this Agreement, including, but not limited to, any advance made pursuant to Section 3.02 or Section 3.21 of this Agreement, as applicable. Each reference to the payment or reimbursement of a Property Advance shall be deemed to include, whether or not specifically referred to, payment or reimbursement of interest thereon at the Advance Rate. Notwithstanding anything to the contrary, “Property Advance” shall not include allocable overhead of the Master Servicer or the Special Servicer, as applicable, 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 the Whole Loan or REO Property.

 

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

 

PTCE”: Prohibited Transaction Class Exemption.

 

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

 

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

 

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

 

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(i) an insurance company or security or bonding company qualified to write the related insurance policy in the relevant jurisdiction and whose claims paying ability is rated (a) (1) at least “A” by S&P; (2) at least “A” by DBRS; or (3) where the Borrower elects to have its insurance coverage provided by a syndicate of insurers, then, (A) if four or fewer insurance companies issue the related insurance policy, at least 75% of the insurance coverage is provided by insurance companies with a claims paying ability rating of “A” or better by S&P, with no provider with a claims paying ability rated below “BBB” by S&P, or (B) if five or more insurance companies issue the related insurance policy, at least 60% of the insurance coverage is provided by insurance companies with a claims paying ability rating of “A” or better by S&P, with no carrier with a claims paying ability rated below “BBB” by S&P, and (b) at least “A3” by Moody’s (or, if not rated by Moody’s, an equivalent rating by (x) at least two NRSROs (which may include S&P and/or DBRS) or (y) one NRSRO (which may include S&P and/or DBRS) and A.M. Best);

 

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

 

(iii) in the case of clauses (i) and (ii), such other rating as to which a No Downgrade Confirmation has been obtained from each Rating Agency and, if applicable, each rating agency relating to the securitization of the Companion Loan for which the minimum rating set forth in the applicable clause is not satisfied.

 

Qualified Manager”: As defined in the Loan Agreement.

 

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

 

Qualified Replacement Special Servicer”: A replacement special servicer that (i) satisfies the Applicable Rating Agency Criteria, (ii) is not the Operating Advisor or an Affiliate of the Operating Advisor, (iii) is not obligated to pay the Operating Advisor (x) any fees or otherwise compensate the Operating Advisor in respect of its obligations under this Agreement, or (y) for the appointment of the successor special servicer or the recommendation by the Operating Advisor for the replacement special servicer to become the special servicer, (iv) is not entitled to receive any compensation from the Operating Advisor other than compensation that is not material and is unrelated to the Operating Advisor’s recommendation that such party be appointed as the replacement special servicer, (v) is not entitled to receive any fee from the Operating Advisor for its appointment as successor special servicer, in each case, unless expressly approved by 100% of the Certificateholders and (vi) satisfies any other conditions set forth in this Agreement for becoming the successor special servicer hereunder.

 

Rated Final Distribution Date”: With respect to the Regular Certificates, the Distribution Date in October 2036.

 

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Rating Agency”: Any of DBRS and S&P.

 

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

 

Realized Loss”: With respect to any Distribution Date, the amount, if any, by which (a) the aggregate Certificate Balance of the Principal Balance Certificates after giving effect to distributions of principal on such Distribution Date exceeds (b) the Stated Principal Balance of the Trust Loan immediately following the Determination Date preceding such Distribution Date.

 

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

 

Regular Certificates”: The Class A, Class X-A, Class B, Class C, Class D and Class E Certificates.

 

Regular Interest Distribution Amount”: With respect to any Distribution Date, an amount equal to, (i) for any Class of Principal Balance Certificates, interest for the related Certificate Interest Accrual Period at the applicable Pass-Through Rate for such Class on the related Certificate Balance immediately prior to such Distribution Date; and (ii) for any Class of Class X Certificates, interest for the related Certificate Interest Accrual Period at the applicable Pass-Through Rate for such Class on the related Notional Balance immediately prior to such Distribution Date.

 

Regulation AB”: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein.

 

Regulation D”: Regulation D under the Securities Act.

 

Regulation S”: Regulation S under the Securities Act.

 

Regulation S Global Certificate”: Each of the Class A, Class X-A, Class B, Class C, Class D and Class E Certificates issued as such on the Closing Date and registered in the name of a nominee of the Depository, interest in which is to be held by Regulation S Investors.

 

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

 

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

 

Relevant Servicing Criteria”: The Servicing Criteria applicable to each Reporting Servicer (as set forth, with respect to the Master Servicer and the Special Servicer, on

 

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Schedule I to this Agreement). For clarification purposes, multiple Reporting Servicers can have responsibility for the same Relevant Servicing Criteria and some of the Servicing Criteria will not be applicable to certain Reporting Servicers. With respect to a Servicing Function Participant engaged by the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, the term “Relevant Servicing Criteria” refers to the items of the Relevant Servicing Criteria applicable to the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee that engaged such Servicing Function Participant that are applicable to such Servicing Function Participant based on the functions it has been engaged to perform.

 

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

 

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

 

Remittance Amount”: For each distribution date that a Master Servicer is required to make a distribution to the Companion Loan Holder pursuant to Section 3.05(h), the amounts received by the Master Servicer (or, with respect to REO Property, the Special Servicer) during the related Collection Period pursuant to the Co-Lender Agreement and available for payment after withdrawals from the Collection Account payable to the Companion Loan Holder(s) pursuant to the Co-Lender Agreement.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

REO Loan”: The Whole Loan if the Mortgaged Property has become an REO Property.

 

REO Proceeds”: With respect to the REO Property and the REO Loan, all revenues received by the Special Servicer with respect to the REO Property or REO Loan which do not constitute Liquidation Proceeds.

 

REO Property”: The Mortgaged Property, title to which has been acquired by the Special Servicer on behalf of the Trust Fund through foreclosure, deed-in-lieu of foreclosure or otherwise.

 

Reporting Servicer”: The Master Servicer, the Special Servicer (regardless of whether the Special Servicer has commenced special servicing of the Whole Loan) and each Servicing Function Participant.

 

Repurchase Communication”: For purposes of Section 2.03(d) of this Agreement only, any communication, whether oral or written, which need not be in any specific form.

 

Repurchase Price”: With respect to the Trust Loan if it is to be repurchased or purchased pursuant to Section 2.03(e) or Section 9.01 of this Agreement, or if the Trust Loan becomes a Specially Serviced Loan or REO Loan that is to be sold pursuant to Section 3.16 of this Agreement, an amount, calculated by the Master Servicer or the Special Servicer, as applicable, equal to:

 

(a)       the outstanding principal balance of the Trust Loan as of the date of purchase; plus

 

(b)       all accrued and unpaid interest on the Trust Loan at the Trust Loan Rate in effect from time to time to but not including the Due Date in the month of purchase (or, in the case of a purchase occurring after the Determination Date in the related month, to but not including the Due Date in the month immediately succeeding such purchase), but excluding any yield maintenance or other prepayment penalty; plus

 

(c)       all related unreimbursed Property Advances and Administrative Advances plus accrued and unpaid interest on related Advances at the Advance Rate, and all Special Servicing Fees and Workout Fees allocable to the Trust Loan; plus

 

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

 

(e)       all Additional Trust Fund Expenses; plus

 

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(f)       if the Trust Loan (or REO Loan) is being purchased by the Trust Loan Seller pursuant to the Trust Loan Purchase Agreement, to the extent not otherwise included in the amount described in clause (c) of this definition, all reasonable out-of-pocket expenses reasonably incurred or to be incurred by the Master Servicer, the Special Servicer, the Depositor, the Certificate Administrator and the Trustee in respect of the Breach or Defect giving rise to the repurchase obligation, including any such expenses arising out of the enforcement of the repurchase obligation, including, without duplication, any such expenses previously reimbursed from the Collection Account, plus accrued and unpaid interest thereon at the Advance Rate, to the extent payable to the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee.

 

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

 

Repurchase Request”: As defined in Section 2.03(d) of this Agreement.

 

Repurchase Request Recipient”: As defined in Section 2.03(d) of this Agreement.

 

Repurchase Request Rejection”: As defined in Section 2.03(d) of this Agreement.

 

Repurchase Request Withdrawal”: As defined in Section 2.03(d) of this Agreement.

 

Request for Release”: A request for a release signed by a Servicing Officer, substantially in the form of Exhibit E to this Agreement.

 

Requesting Holders”: As defined in Section 4.08(b) of this Agreement.

 

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

 

Required Third Party Purchaser Retention Amount”: $16,117,000 of the Class E Certificates, which is the aggregate Certificate Balance of the Class of Certificates constituting the EHRI as of the Closing Date.

 

Reserve Accounts”: Reserve accounts, if any, established pursuant to the Mortgage or the Loan Agreement and any Escrow Account. Any Reserve Account may be a sub-account of a related Cash Collateral Account. Any Reserve Account shall be beneficially owned for federal income tax purposes by the Person who is entitled to receive the reinvestment income or gain thereon in accordance with the terms and provisions of the Whole Loan and Section 3.07 of this Agreement, which Person shall be taxed on all reinvestment income or gain thereon. The Master Servicer shall be permitted to make withdrawals therefrom for deposit into the related Cash Collateral Account, if applicable, or the Collection Account or for the purposes set forth under the Loan Documents for the Whole Loan.

 

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Residual Certificates”: The Class R and Class LR Certificates, collectively.

 

Resolution Extension Period”: As used in this Agreement shall mean:

 

(a)       for purposes of remediating a Material Breach with respect to the Trust Loan, the 90-day period following the end of the applicable Initial Resolution Period;

 

(b)       for purposes of remediating a Material Document Defect with respect to the Trust Loan, if it is not a Specially Serviced Loan at the commencement of, and does not become a Specially Serviced Loan during, the applicable Initial Resolution Period, the period commencing at the end of the applicable Initial Resolution Period and ending on, and including, the earlier of (i) the 90th day following the end of such Initial Resolution Period and (ii) the 45th day following the Trust Loan Seller’s receipt of written notice from the Master Servicer or the Special Servicer of the occurrence of any Servicing Transfer Event with respect to the Trust Loan subsequent to the end of such Initial Resolution Period;

 

(c)       for purposes of remediating a Material Document Defect with respect to the Trust Loan, if it is a not a Specially Serviced Loan as of the commencement of the applicable Initial Resolution Period, but as to which a Servicing Transfer Event occurs during such Initial Resolution Period, the period commencing at the end of the applicable Initial Resolution Period and ending on, and including, the 90th day following the earlier of the end of such Initial Resolution Period and the Trust Loan Seller’s receipt of written notice from the Master Servicer or the Special Servicer of the occurrence of such Servicing Transfer Event; and

 

(d)       for purposes of remediating a Material Document Defect with respect to the Trust Loan, if it is a Specially Serviced Loan as of the commencement of the applicable Initial Resolution Period, zero (-0-) days; provided that, if the Trust Loan Seller did not receive written notice from the Master Servicer or the Special Servicer of the relevant Servicing Transfer Event as of the commencement of the applicable Initial Resolution Period, then such Servicing Transfer Event shall be deemed to have occurred during such Initial Resolution Period and clause (c) of this definition will be deemed to apply.

 

Responsible Officer”: When used with respect to the Trustee or the Certificate Administrator, any officer of the Trustee or the Certificate Administrator, as the case may be, assigned to the Corporate Trust Office of such party; in each case, with direct responsibility for the administration of this Agreement and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, and, in the case of any certification required to be signed by a Responsible Officer, such an officer whose name and specimen signature appears on a list of corporate trust officers furnished to the Master Servicer by the Trustee and the Certificate Administrator, as such list may from time to time be amended.

 

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

 

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Restricted Holder”: With respect to any mezzanine loan related to the Whole Loan, a mezzanine lender (or any affiliate or agent thereof) or an owner of any interest in any such mezzanine loan (whether legally, beneficially or otherwise, including as a beneficial owner of any securities collateralized by any such mezzanine loan) (a) as to which a Default has occurred giving rise to an automatic acceleration of such mezzanine loan or the right of the lender thereunder to accelerate such mezzanine loan or (b) as to which foreclosure proceedings against the related collateral have been initiated (and in respect of which, the Special Servicer has received notice thereof).

 

Restricted Period”: The 40-day period prescribed by Regulation S commencing on the later of (a) the date upon which the Certificates are first offered to institutions that are persons other than the Initial Purchaser and any other distributor (as defined in Regulation S) of the Certificates and (b) the Closing Date.

 

Rule 144A”: Rule 144A under the Securities Act.

 

Rule 144A Global Certificate”: Each of the Class A, Class X-A, Class B, Class C, Class D and Class E Certificates issued as such on the Closing Date and registered in the name of a nominee of the Depository, interest in which is to be held by Qualified Institutional Buyers.

 

Rule 15Ga-1 Notice”: As defined in Section 2.03(d) of this Agreement.

 

Rule 15Ga-1 Notice Provider”: As defined in Section 2.03(d) of this Agreement.

 

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

 

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

 

S&P”: S&P Global Ratings, or any successor thereto. If neither S&P nor any successor remains in existence, “S&P” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person designated by the Depositor, notice of which designation shall be given to the other parties hereto and specific ratings of S&P herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

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

 

Securities Legend”: As defined in Section 5.02(c)(iii) of this Agreement.

 

Securitization Sponsor”: GACC.

 

Senior Non-Trust Note”: Note A-2 in the principal amount of $71,000,000.

 

Senior Notes”: The Senior Trust Note and the Senior Non-Trust Note.

 

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Senior Trust Note”: Note A-1-in the principal amount of $143,000,000.

 

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

 

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

 

Servicer Termination Event”: A Master Servicer Termination Event or Special Servicer Termination Event, as applicable.

 

Servicing Compensation”: With respect to any Collection Period, the related Servicing Fee, Prepayment Interest Excess (if any and to the extent any such Prepayment Interest Excess exceeds the amount of any Prepayment Interest Shortfalls) and any other fees, charges or other amounts payable to the Master Servicer under this Agreement for such period.

 

Servicing Criteria”: The criteria set forth in paragraph (d) of Item 1122 of Regulation AB as such may be amended from time to time.

 

Servicing Fee”: With respect to the Trust Loan or the Whole Loan, as the case may be, and for any Distribution Date, an amount per Certificate Interest Accrual Period equal to interest at the Servicing Fee Rate accrued on the Stated Principal Balance of the Trust Loan or the Whole Loan, as the case may be, as of the Due Date immediately preceding such Distribution Date (without giving effect to payments of principal on the Trust Loan or the Whole Loan, as the case may be, on such Due Date). The Servicing Fee shall be calculated in accordance with the provisions of Section 1.02(a) of this Agreement. For the avoidance of doubt, the Servicing Fee shall be deemed for tax purposes as paid from the Lower-Tier REMIC.

 

Servicing Fee Rate”: (a) With respect to the Trust Loan, a master servicing fee rate equal to 0.00125% per annum, and (b) with respect to the Whole Loan, a primary servicing fee rate equal to 0.00125% per annum.

 

Servicing File”: As defined in the Trust Loan Purchase Agreement.

 

Servicing Function Participant”: Any Person, other than the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee or the Operating Advisor, that, within the meaning of Item 1122 of Regulation AB, is performing activities that address the Servicing Criteria, unless the Master Servicer has assumed responsibility for the servicing activity, as provided for under 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 Trust Loan and/or the Companion Loan, 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

 

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employee’s knowledge of and familiarity with the particular subject, and, in the case of any certification required to be signed by a Servicing Officer, such an officer or employee whose name and specimen signature appears on a list of servicing officers furnished to the Certificate Administrator, the Trustee and the Operating Advisor by the Master Servicer or the Special Servicer, as applicable, as such list may from time to time be amended.

 

Servicing Standard”: With respect to the Master Servicer (with respect to the Whole Loan) and the Special Servicer (with respect to the Specially Serviced Loan or REO Loan), to diligently service and administer the Whole Loan, Specially Serviced Loan or REO Loan for which each is responsible in the best interests of and for the benefit of all of the Certificateholders and the Companion Loan Holder (as a collective whole as if such Certificateholders and Companion Loan Holder constitute a single lender), as determined by the Master Servicer or the Special Servicer, as the case may be, in the exercise of its reasonable judgment, in accordance with applicable law, the terms of this Agreement, the Loan Documents and the Co-Lender Agreement, and to the extent not inconsistent with the foregoing, in accordance with the higher of the following standards of care:

 

(a)       the same manner in which, and with the same care, skill, prudence and diligence with which, the Master Servicer or the Special Servicer, as the case may be, services and administers similar mortgage loans for other third-party portfolios, giving due consideration to the customary and usual standards of practice of prudent institutional commercial and multifamily mortgage loan servicers servicing their own mortgage loans with a view to the timely recovery of all payments of principal and interest under the Whole Loan or if the Whole Loan is a Defaulted Mortgage Loan, the maximization of timely recovery of principal and interest on a net present value basis (determined in accordance with the Loan Documents or, in the event the Loan Documents are silent, at the Calculation Rate) on the Whole Loan, and the best interests of the Trust and the Certificateholders and the Companion Loan Holder (as a collective whole as if such Certificateholders and Companion Loan Holder constitute a single lender), as determined by the Master Servicer or the Special Servicer, as the case may be, in the exercise of its reasonable judgment; and

 

(b)       the same care, skill, prudence and diligence with which the Master Servicer or the Special Servicer, as the case may be, services and administers commercial and multifamily mortgage loans owned, if any, by the Master Servicer or the Special Servicer, as the case may be, with a view to the timely recovery of all payments of principal and interest under the Whole Loan or, if the Whole Loan is a Defaulted Mortgage Loan, the maximization of timely recovery of principal and interest on a net present value basis (determined in accordance with the Loan Documents or, in the event the Loan Documents are silent, at the Calculation Rate) on the Whole Loan, and the best interests of the Trust and the Certificateholders and the Companion Loan Holder (as a collective whole as if such Certificateholders and Companion Loan Holder constitute a single lender), as determined by the Master Servicer or the Special Servicer, as the case may be, in the exercise of its reasonable judgment;

 

provided, that in each of clauses (a) and (b) above, such standards shall be applied without regard to any potential conflict of interest arising from (i) any relationship that the Master Servicer or the Special Servicer, as the case may be, or any Affiliate of the Master Servicer or the Special

 

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Servicer, may have with the Borrower, the Trust Loan Seller, the Companion Loan Holder, any other party to this Agreement or any Affiliate of the foregoing; (ii) the ownership of any Certificate or any interest in the Companion Loan or any mezzanine loan related to the Whole Loan by the Master Servicer or the Special Servicer, as the case may be, or any Affiliate of the Master Servicer or the Special Servicer; (iii) the Master Servicer’s obligation to make Advances; (iv) the Master Servicer’s or the Special Servicer’s, as the case may be, right to receive compensation for its services hereunder or with respect to any particular transaction; (v) the ownership, servicing or management for others of any other mortgage loans or mortgaged properties by the Master Servicer or the Special Servicer or any Affiliate of the Master Servicer or the Special Servicer, as applicable; and (vi) any debt that the Master Servicer or the Special Servicer or any Affiliate of the Master Servicer or the Special Servicer, as applicable, has extended to the Borrower or an Affiliate of the Borrower (including, without limitation, any mezzanine financing).

 

Servicing Transfer Event”: An event specified in the definition of Specially Serviced Loan.

 

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 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 5.02(k) of this Agreement.

 

Sole Certificateholder”: Any Holder (or Holders, provided they act in unanimity) holding 100% of the then outstanding Certificates (excluding the Class R and Class LR Certificates) or an assignment of the Voting Rights thereof.

 

Special Notice”: Any (a) notice transmitted to Certificateholders pursuant to Section 5.05(c) of this Agreement, (b) notice of any request by at least 25% of the Voting Rights allocable to the Certificates to terminate and replace the Special Servicer pursuant to Section 3.22(b) of this Agreement and (c) notice of any request by at least 15% of the Voting Rights of the Certificates to terminate and replace the Operating Advisor pursuant to Section 7.07(b) of this Agreement.

 

Special Servicer”: AEGON USA Realty Advisors, LLC, an Iowa limited liability company, in its capacity as Special Servicer hereunder, its successor in interest (in such capacity), or if any successor Special Servicer is appointed as herein provided, such successor Special Servicer.

 

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

 

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Special Servicing Compensation”: With respect to the Whole Loan, any of the Special Servicing Fee, Workout Fee, Liquidation Fee and any other fees, charges or other amounts which shall be due to the Special Servicer.

 

Special Servicing Fee”: With respect to a Specially Serviced Loan (or REO Loan) for each calendar month (or portion thereof), the fraction of the Special Servicing Fee Rate applicable to such month, or portion thereof (determined using the same interest accrual methodology that is applied with respect to the Whole Loan Rate for such Specially Serviced Loan or REO Loan for such month) multiplied by the Stated Principal Balance of such Specially Serviced Loan as of the Due Date (without giving effect to all payments of principal on such Specially Serviced Loan or REO Loan on such Due Date) immediately preceding the applicable Distribution Date (or, in the event that a Principal Prepayment in full or an event described in clauses (i)-(vii) under the definition of Liquidation Proceeds has occurred with respect to a Specially Serviced Loan or REO Loan on a date that is not a Due Date, on the basis of the actual number of days to elapse from and including the most recently preceding related Due Date to but excluding the date of such Principal Prepayment or Liquidation Proceeds event in a month consisting of 30 days). For the avoidance of doubt, the Special Servicing Fee shall be deemed for tax purposes as paid from the Lower-Tier REMIC.

 

Special Servicing Fee Rate”: A rate equal to 0.25% per annum.

 

Specially Serviced Loan”: Subject to Section 3.23 of this Agreement, the Whole Loan if:

 

(a)       a payment default shall have occurred on the Whole Loan at its Maturity Date or, if the Maturity Date of the Whole Loan has been extended in accordance with this Agreement, a payment default occurs on the Whole Loan at such extended Maturity Date; provided, however, that if (A) the Borrower is diligently seeking a refinancing commitment (and delivers a statement to that effect within 30 days after such default to the Master Servicer, who shall promptly deliver a copy to the Special Servicer, the Operating Advisor and the Directing Holder (but only during a Subordinate Control Period or Subordinate Consultation Period), (B) the Borrower continues to make its Assumed Scheduled Payment and (C) no other Servicing Transfer Event shall have occurred with respect to the Whole Loan, a Servicing Transfer Event will not occur until 60 days beyond the Maturity Date, unless extended by the Special Servicer in accordance with the Loan Documents, this Agreement and the Co-Lender Agreement; provided, further, that if the Borrower has delivered to the Master Servicer (who shall promptly deliver a copy to the Special Servicer, the Operating Advisor and, during any Subordinate Control Period or Subordinate Consultation Period, the Directing Holder) or the Special Servicer (who shall promptly deliver a copy to the Operating Advisor and, during any Subordinate Control Period or Subordinate Consultation Period, the Directing Holder), on or before the 60th day after the related Maturity Date, a refinancing commitment reasonably acceptable to the Special Servicer, and the Borrower continues to make its Assumed Scheduled Payments (and no other Servicing Transfer Event has occurred with respect to the Whole Loan), a Servicing Transfer Event will not occur until the earlier of (1) 120 days beyond the related Maturity Date or extended Maturity Date and (2) the termination of the refinancing commitment;

 

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(b)       any Monthly Payment (other than a Balloon Payment) or any amount due on a monthly basis as an Escrow Payment or reserve fund deposit, is 60 days or more delinquent;

 

(c)       the Master Servicer or Special Servicer (and in the case of the Special Servicer, during a Subordinate Control Period, with the consent of the Directing Holder) determines in its reasonable business judgment, exercised in accordance with the Servicing Standard, that (x) a default consisting of a failure to make a payment of principal or interest is reasonably foreseeable or there is a significant risk of such default or (y) any other default that is likely to impair the use or marketability of the Mortgaged Property or the value of the Mortgaged Property as security for the Whole Loan is reasonably foreseeable or there is a significant risk of such default, which monetary or other default, in either case, would likely continue unremedied beyond the applicable grace period (or, if no grace period is specified, for a period of 60 days) and is not likely to be cured by the Borrower within 60 days or, except as provided in clause (a) above, in the case of a Balloon Payment, for at least 30 days;

 

(d)       the Borrower has become a subject of a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law, or the appointment of a conservator, receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs;

 

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

 

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

 

(g)       a default, of which the Master Servicer or Special Servicer has notice (other than a failure by the Borrower to pay principal or interest) and which in the opinion of the Master Servicer or Special Servicer (and in the case of the Special Servicer, during a Subordinate Control Period, with the consent of the Directing Holder) materially and adversely affects the interests of the Certificateholders or the Companion Loan Holder, occurs and remains unremedied for the applicable grace period specified in the Loan Documents (or if no grace period is specified for those defaults which are capable of cure, 60 days);

 

(h)       the Master Servicer or Special Servicer receives notice of the foreclosure or proposed foreclosure of any lien on the Mortgaged Property; or

 

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(i)       the Master Servicer or the Special Servicer receives actual notice that the Borrower has violated any “due-on-sale” or “due-on-encumbrance” provision in the related Loan Documents;

 

provided, however, that the Whole Loan will cease to be a Specially Serviced Loan (a “Corrected Mortgage Loan”) (i) with respect to the circumstances described in clauses (a) and (b) above, when the Borrower thereunder has brought the Whole Loan current and thereafter made three consecutive full and timely Monthly Payments, including pursuant to any workout of the Whole Loan, (ii) with respect to the circumstances described in clauses (c), (d), (e), (f) and (h) above, when such circumstances cease to exist in the good faith judgment of the Special Servicer, or (iii) with respect to the circumstances described in clauses (g) and (i) above, when such default is cured (as determined by the Special Servicer in accordance with the Servicing Standard) or waived by the Special Servicer; provided, in each case, that at that time no circumstance exists (as described above) that would cause the Whole Loan to continue to be characterized as a Specially Serviced Loan. Each of the circumstances described in clauses (a) through (i) above shall be a “Servicing Transfer Event”.

 

Startup Day”: In the case of the Upper-Tier REMIC and Lower-Tier REMIC, the day designated as such pursuant to Section 2.06(a) of this Agreement.

 

Stated Principal Balance”: With respect to the Trust Loan, the Companion Loan or the Whole Loan, on any date of determination, the principal balance as of the Cut-off Date of such Trust Loan, Companion Loan or Whole Loan, as reduced (to not less than zero) on each Distribution Date by (i) all payments (or P&I Advances or Companion Loan Advances in lieu thereof) of, and all other collections allocated as provided in Section 1.02 of this Agreement to, principal of or with respect to such Trust Loan, Companion Loan or Whole Loan, as applicable, that are distributed to Certificateholders on such Distribution Date or Companion Loan Holder on the related remittance date in the same calendar month as such Distribution Date or applied to any other payments required under this Agreement or the Co-Lender Agreement on or prior to such Distribution Date, and (ii) any principal forgiven by the Special Servicer and other principal losses realized in respect of such Trust Loan, Companion Loan or Whole Loan during the related Collection Period.

 

The Trust Loan or the REO Loan shall be deemed to be part of the Trust Fund and to have an outstanding Stated Principal Balance until the Distribution Date on which Liquidation Proceeds, if any, are to be (or, if no such Liquidation Proceeds are received, would have been) distributed to Certificateholders. The Stated Principal Balance of the Whole Loan with respect to which the Master Servicer or Special Servicer has made a Final Recovery Determination is zero.

 

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 Whole Loan but performs one or more discrete functions identified in Item 1122(d) of Regulation AB with respect to Whole Loan under the direction or authority of the Master Servicer or a Servicing Function Participant.

 

Sub-Servicer”: Any Person engaged by the Master Servicer or the Special Servicer to perform Servicing with respect to the Whole Loan or REO Loan.

 

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Sub-Servicing Agreement”: The written contract between the Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the other hand, relating to servicing and administration of the Whole Loan as provided in Section 3.01(c) of this Agreement.

 

Subordinate Consultation Period”: Any period when both (i) the Certificate Balance of the Class E Certificates (taking into account the application of any Appraisal Reduction Amounts and Collateral Deficiency Amounts to notionally reduce the Certificate Balance of such Certificates) is less than 25% of the initial Certificate Balance of the Class E Certificates and (ii) the Certificate Balance of the Class E Certificates (without regard to the application of any Appraisal Reduction Amounts and Collateral Deficiency Amounts allocated to the Class E Certificates) is at least 25% of the initial Certificate Balance of the Class E Certificates. If the Directing Holder becomes a Borrower Related Party, a Subordinate Consultation Period shall be deemed to be terminated (except for the purposes of determining whether the Directing Holder or a Majority Controlling Class Certificateholder has the right to appoint the successor special servicer to a Special Servicer that has become a Borrower Related Party pursuant to Section 3.22(f)).

 

Subordinate Control Period”: Any period when the Certificate Balance of the Class E Certificates (taking into account the application of any Appraisal Reduction Amounts and Collateral Deficiency Amounts to notionally reduce the Certificate Balance of such Certificates) is at least 25% of the initial Certificate Balance of the Class E Certificates; provided that if at any time the Certificate Balances of the Class A, Class B, Class C and Class D Certificates have been reduced to zero as a result of the allocation of principal payments on the Trust Loan, then a Subordinate Control Period shall be deemed to then be in effect. If the Directing Holder becomes a Borrower Related Party, a Subordinate Control Period shall be deemed to be terminated (except for the purposes of determining whether the Directing Holder or a Controlling Class Certificateholder has the right to appoint the successor special servicer to a Special Servicer that has become a Borrower Related Party pursuant to Section 3.22(g)).

 

Tax Returns”: The federal income tax returns on IRS Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed by the Certificate Administrator on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC due to its classification as a REMIC under the REMIC Provisions, together with any and all other information, reports or returns that may be required to be furnished to the Certificateholders or filed with the IRS or any other governmental taxing authority under any applicable provisions of federal law or Applicable State and Local Tax Law.

 

Terminated Party”: As defined in Section 7.01(c) of this Agreement.

 

Terminating Party”: As defined in Section 7.01(c) of this Agreement.

 

Termination Date”: The Distribution Date on which the Trust Fund is terminated pursuant to Section 9.01 of this Agreement.

 

Third Party Appraiser”: A Person performing an Appraisal.

 

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Third Party Purchaser”: PCSD PR Cap IV NR Reten Private Limited, a Singapore private limited company, or any Person that purchases the EHRI in accordance with this Agreement and applicable laws and regulations.

 

Third Party Purchaser Safekeeping Account”: An account maintained by the Certificate Administrator, which account shall be deemed to be owned by the Holders of the Class(es) of Certificates constituting the EHRI.

 

Third Party Purchaser Transfer Restriction Period”: The period from the Closing Date to the earliest of (i) the latest of (A) the date on which the aggregate unpaid principal balance of the Trust Loan has been reduced to 33% of the Cut-off Date Balance of the Trust Loan, (B) the date on which the outstanding principal balance of the Principal Balance Certificates has been reduced to 33% of the aggregate outstanding principal balance of the Principal Balance Certificates as of the Closing Date, or (C) two years after the Closing Date, or (ii) the date on which the Whole Loan has been defeased in accordance with the requirements set forth in §__.7(b)(8)(i) of the Credit Risk Retention Rules.

 

Third Party Reports”: With respect to the Mortgaged Property, the related Appraisal, Phase I environmental report, Phase II environmental report, seismic report (if any), engineering report, structural report, property condition report or similar report, if any.

 

Transfer”: Any direct or indirect transfer or other form of assignment of any Ownership Interest in any Class(es) of Certificates constituting the EHRI, Class R or Class LR Certificate.

 

Transferee Affidavit”: As defined in Section 5.02(l)(ii) of this Agreement.

 

Transferor Certificate”: As defined in Section 5.02(l)(ii) of this Agreement.

 

Trust” or “Trust Fund”: The corpus of the trust created hereby and to be administered hereunder, consisting of (in each case, to the extent of the Trust Fund’s interest therein and specifically excluding any interest of the Companion Loan Holder therein): (i) the Trust Loan, together with the Mortgage File relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Trust Loan due after the Cut-off Date; (iii) any REO Property; (iv) all revenues received in respect of any REO Property; (v) any indemnities or guaranties given as additional security for the Trust Loan; (vi) a security interest in all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts; (vii) amounts on deposit in the Collection Account attributable to the Trust Loan as identified on the Trust Ledger, the Distribution Accounts, the Interest Reserve Account or the REO Account, including any reinvestment income, as applicable; (viii) a security interest in any environmental indemnity agreements relating to the Mortgaged Property; (ix) a security interest in all insurance policies with respect to the Trust Loan and the Mortgaged Property; (x) the rights and remedies under the Trust Loan Purchase Agreement relating to document delivery requirements with respect to the Trust Loan and the representations and warranties of the Trust Loan Seller regarding the Trust Loan; (xi) the Lower-Tier Regular Interests; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to the Borrower).

 

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Trust Ledger”: Amounts deposited in the Collection Account attributable to the Whole Loan, which are maintained pursuant to Section 3.06(a) of this Agreement and held on behalf of the Trustee on behalf of the Certificateholders and the Companion Loan Holder.

 

Trust Loan”: The portion of the Whole Loan evidenced by Note A-1 and Note B, which is transferred and assigned to the Trustee pursuant to Section 2.01 of this Agreement and held in the Trust Fund. The Trust Loan originally so transferred, assigned and held is identified on the Mortgage Loan Schedule as of the Closing Date. The term “Trust Loan” also includes an REO Loan, unless the context clearly indicates otherwise.

 

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

 

Trust Loan Rate”: With respect to the Trust Loan and any Whole Loan Interest Accrual Period, the annual rate at which interest accrues on the Trust Loan during such period (in the absence of a default), as set forth in the related Trust Notes from time to time.

 

Trust Loan Seller”: GACC.

 

Trust Loan Seller Sub-Servicer”: Any party required to be retained by the Master Servicer or the Special Servicer by the Trust Loan Seller.

 

Trust Notes”: Collectively, as of any date of determination, the notes or other evidence of indebtedness and/or agreements evidencing the indebtedness of the Borrower under the Trust Loan including any amendments or modifications, or any renewal or substitution note, as of such date. As of the Cut-off Date, Note A-1 and Note B constitute the Trust Notes.

 

Trust REMICs”: The Lower-Tier REMIC and the Upper-Tier REMIC.

 

Trustee”: Wells Fargo Bank, National Association, a national banking association, in its capacity as Trustee, or its successor in interest, or any successor Trustee appointed as herein provided.

 

Trustee/Certificate Administrator Fee”: With respect to the Trust Loan and for any Distribution Date, an amount per Certificate Interest Accrual Period equal to interest at the Trustee/Certificate Administrator Fee Rate accrued on the Stated Principal Balance of the Trust Loan as of the Due Date in the related Collection Period (without giving effect to payments of principal on the Trust Loan on such Due Date). The Trustee/Certificate Administrator Fee shall be calculated in accordance with the provisions of Section 1.02(a) of this Agreement. A monthly fee shall be paid by the Certificate Administrator to the Trustee as the Trustee’s fee, which amount shall be paid from the Trustee/Certificate Administrator Fee.

 

Trustee/Certificate Administrator Fee Rate”: A rate equal to 0.0127% per annum.

 

Underwriter Exemption”: Department of Labor Final Authorization Number 97-03E, as most recently amended by Prohibited Transaction Exemption 2013-08 and as further amended by the Department of Labor from time to time.

 

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Unscheduled Payments”: With respect to the Whole Loan and a Collection Period, all Net Liquidation Proceeds, all Net Condemnation Proceeds and Net Insurance Proceeds payable under the Trust Loan or the Whole Loan, as applicable, the Repurchase Price or purchase price if the Trust Loan is repurchased or purchased pursuant to Section 2.03(e), Section 3.16 or Section 9.01 of this Agreement or by a mezzanine lender, any indemnification payment made by the Trust Loan Seller as a result of a Material Breach or Material Document Defect pursuant to Section 2.03(e) of this Agreement and any other payments under or with respect to the Trust Loan or the Whole Loan, as applicable, not scheduled to be made, including Principal Prepayments received by the Master Servicer (but excluding Prepayment Charges, if any) during such Collection Period.

 

Updated Appraisal”: An Appraisal of the Mortgaged Property or REO Property, as the case may be, conducted subsequent to any appraisal performed on or prior to the Cut-off Date and in accordance with Appraisal Institute standards, the costs of which shall be paid as a Property Advance by the Master Servicer. Updated Appraisals shall be conducted by an Independent MAI appraiser selected by the Special Servicer.

 

Upper-Tier Distribution Account”: The segregated non-interest bearing trust account or sub-account created and maintained by the Certificate Administrator pursuant to Section 3.05(c) 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, in trust for the benefit of the Holders of COMM 2016-667M Mortgage Trust Commercial Mortgage Pass-Through Certificates, Upper-Tier Distribution Account” and which must be an Eligible Account or a sub-account of an Eligible Account. The Upper-Tier Distribution Account shall be an asset of the Upper-Tier REMIC.

 

Upper-Tier REMIC”: A segregated asset pool within the Trust Fund consisting of the Lower-Tier Regular Interests, the Upper-Tier Distribution Account and amounts held therein from time to time.

 

U.S. Person”: A citizen or resident of the United States, a corporation, partnership (except to the extent provided in applicable Treasury Regulations), or other entity created or organized in or under the laws of the United States, any state thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, an estate whose income is subject to United States federal income tax regardless of its source, or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, certain trusts in existence on August 20, 1996 that have elected to be treated as U.S. Persons).

 

Voting Rights”: The portion of the voting rights of all of the Certificates that is allocated to any Certificateholder or Class of Certificateholders. At all times during the term of this Agreement, the percentage of Voting Rights assigned to each Class shall be: (a) 98% to be allocated among the Certificateholders of the respective Classes of Principal Balance Certificates in proportion to the Certificate Balances of their Certificates, (b) 2% to be allocated the among Certificateholders of the Class X Certificates for as long as any of the Class X Certificates are outstanding, and (c) except as otherwise set forth in this Agreement with respect to any particular

 

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matter, 0%, in the case of the Class R and Class LR Certificates. Voting Rights allocated to a Class of Certificateholders shall be allocated among such Certificateholders in proportion to the Percentage Interests in such Class evidenced by their respective Certificates.

 

Whole Loan”: Collectively, the Trust Loan and the Companion Loan. References herein to the Whole Loan shall be construed to refer to the aggregate indebtedness under Note A-1, Note A-2 and Note B.

 

Whole Loan Interest Accrual Period”: With respect to the Whole Loan, the period commencing on the 6th day of each calendar month during the term of the Whole Loan and ending on and including the 5th day of the next occurring calendar month.

 

Whole Loan Rate”: With respect to the Whole Loan and any Whole Loan Interest Accrual Period, the annual rate at which interest accrues on the Whole Loan during such period (in the absence of a default), as set forth in the Notes from time to time.

 

Withheld Amount”: With respect to the Trust Loan and with respect to each Distribution Date occurring in January of each calendar year that is not a leap year and February of each calendar year, unless in either case such Distribution Date is the final Distribution Date, an amount equal to one day’s interest at the Trust Loan Rate (net of any Servicing Fee, Trustee/Certificate Administrator Fee and the CREFC® License Fee payable therefrom) on the Stated Principal Balance as of the Due Date in the month preceding the month in which such Distribution Date occurs, to the extent that a Monthly Payment or a P&I Advance is made in respect thereof.

 

Workout Fee”: An amount equal to 0.50% of each collection of interest and principal (including scheduled payments, prepayments (provided that a repurchase by the Trust Loan Seller of the Trust Loan due to a Material Document Defect or a Material Breach shall not be considered a prepayment for purposes of this definition if the Trust Loan Seller repurchases the Trust Loan within the resolution time period set forth in Section 2.03(e) of this Agreement (and giving effect to any applicable extension period beyond the end of the Initial Resolution Period set forth in Section 2.03(e) of this Agreement)), Balloon Payments and payments at maturity, but excluding late payment charges and Default Interest) received if the Whole Loan is a Specially Serviced Loan that becomes a Corrected Mortgage Loan for so long as it remains a Corrected Mortgage Loan, pursuant to Section 3.12(c) of this Agreement; provided, further, that no Workout Fee shall be payable by the Trust with respect to any Corrected Mortgage Loan if and to the extent that the Corrected Mortgage Loan became a Specially Serviced Loan under clause (c) of the definition of “Specially Serviced Loan” and no event of default actually occurs, unless the Whole Loan is modified by the Special Servicer in accordance with the terms of this Agreement or the Whole Loan subsequently qualifies as a Specially Serviced Loan for a reason other than under clause (c) of the definition thereof; provided, further that if the Whole Loan becomes a Specially Serviced Loan only because of an event described in clause (a) of the definition of “Specially Serviced Loan” and the related collection of principal and interest is received within three months following the related maturity date as a result of the Whole Loan being refinanced or otherwise repaid in full, the Special Servicer shall not be entitled to collect a Workout Fee out of the proceeds received in connection with such workout if such fee would reduce the amount available for distributions to Certificateholders, but the Special Servicer may collect from the Borrower and retain (x) a workout fee, (y) such other fees as are provided for in

 

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the Loan Documents and (z) other appropriate fees in connection with such workout. The total amount of Workout Fees payable by the Trust with respect to the Corrected Mortgage Loan and with respect to any particular workout (assuming, for the purposes of this calculation, that the Corrected Mortgage Loan continues to perform throughout its term in accordance with the terms of the related workout) shall be reduced by the amount of any and all Offsetting Modification Fees received by the Special Servicer as additional servicing compensation relating to the Corrected Mortgage Loan; provided that the Special Servicer shall be entitled to collect such Workout Fees from the Trust until such time it has been fully paid such reduced amount. For the avoidance of doubt, the Trust Loan Seller shall pay a Workout Fee in connection with a repurchase to the extent the Special Servicer was entitled to such a fee and such fee was unpaid immediately prior to such repurchase or was previously paid by the Trust and was not reimbursed by the Borrower immediately prior to such repurchase. In furtherance of the foregoing, upon the Specially Serviced Loan becoming a Corrected Mortgage Loan, the Special Servicer shall provide the Master Servicer with a calculation of the total amount of Workout Fees expected to be payable by the Trust with respect to the Corrected Mortgage Loan throughout its term (which calculation shall be reasonably acceptable to the Master Servicer) and the total amount of Offsetting Modification Fees received by the Special Servicer.

 

Section 1.02 Certain Calculations. Unless otherwise specified herein, the following provisions shall apply:

 

(a)       All calculations of interest with respect to the Whole Loan (and of Advances in respect thereof) provided for herein shall be made on Actual/360 Basis. The Servicing Fee, the Trustee/Certificate Administrator Fee, the Operating Advisor Fee and the CREFC® License Fee for the Trust Loan shall accrue on the same basis as interest accrues on the Whole Loan. The Certificates will accrue interest on a 30/360 basis.

 

(b)       Any Whole Loan payment is deemed to be received on the date such payment is actually received by the Master Servicer or the Certificate Administrator; provided, however, that for purposes of calculating distributions on the Certificates and Prepayment Interest Excess, Principal Prepayments with respect to the Whole Loan are deemed to be received on the date they are applied in accordance with Section 3.01(b) of this Agreement to reduce the Stated Principal Balance of the Whole Loan on which interest accrues.

 

(c)       Except as otherwise provided in the Loan Documents or the Co-Lender Agreement, any amounts received in respect of the Whole Loan as to which a default has occurred and is continuing in excess of Monthly Payments shall be applied to Default Interest and other amounts due on the Whole Loan prior to the application to late fees.

 

(d)       Allocations of payments between the Trust Loan and the Companion Loan shall be made in accordance with the Co-Lender Agreement.

 

(e)       All amounts collected by or on behalf of the Trust in respect of the Whole Loan in the form of payments from the Borrower, Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds (exclusive of any amounts payable to the Companion Loan Holder pursuant to the Co-Lender Agreement) shall be allocated to amounts due and owing under the Loan Documents (including for principal and accrued and unpaid interest) in accordance with the express provisions of the Loan Documents and the Co-Lender Agreement; provided, however,

 

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that absent such express provisions, all such amounts collected (exclusive of any amounts payable to the Companion Loan Holder pursuant to the Co-Lender Agreement) shall be deemed to be allocated for purposes of collecting amounts due under the Whole Loan in the following order of priority:

 

(i)       as a recovery of any unreimbursed Advances with respect to the Trust Loan or the Whole Loan with respect to Property Advances or Nonrecoverable Advances and unpaid interest at the Advance Rate on such Advances and, if applicable, unreimbursed and unpaid Additional Trust Fund Expenses with respect to the Whole Loan;

 

(ii)      as a recovery of Nonrecoverable Advances and any interest at the Advance Rate thereon to the extent previously allocated to principal collections with respect to the Trust Loan or Whole Loan, as applicable;

 

(iii)     to the extent not previously allocated pursuant to clause (i) above, as a recovery of accrued and unpaid interest on the Trust Loan (exclusive of Default Interest) to the extent of the excess of (A) accrued and unpaid interest on the Trust Loan at the Trust Loan Rate to, but not including, the date of receipt by or on behalf of the Trust (or, in the case of a full Monthly Payment from the Borrower, through the related Due Date), over (B) the sum of (a) the cumulative amount of the reductions (if any) in the amount of related P&I Advances for the Trust Loan that have theretofore occurred under Section 4.07(e) of this Agreement in connection with Appraisal Reduction Amounts (to the extent that collections have not been allocated as a recovery of accrued and unpaid interest pursuant to clause (v) below on earlier dates) and (b) Accrued AB Loan Interest allocable to the Trust Loan;

 

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

 

(v)      as a recovery of (a) accrued and unpaid interest on the Trust Loan to the extent of the cumulative amount of the reductions (if any) in the amount of P&I Advances for the Trust Loan that have theretofore occurred under Section 4.07(e) of this Agreement in connection with related Appraisal Reduction Amounts and (b) Accrued AB Loan Interest (in each of clause (a) and (b), to the extent that collections have not been allocated as recovery of accrued and unpaid interest pursuant to this clause (v) on earlier dates);

 

(vi)     as a recovery of amounts to be currently allocated to the payment of, or escrowed for the future payment of, real estate taxes, assessments and insurance premiums and similar items relating to the Whole Loan (and allocable to the Trust Loan);

 

(vii)    as a recovery of any other reserves to the extent then required to be held in escrow with respect to the Whole Loan (and allocable to the Trust Loan);

 

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(viii)   as a recovery of any Prepayment Charge then due and owing under the Trust Loan;

 

(ix)      as a recovery of any late payment charges and Default Interest then due and owing under the Whole Loan (and allocable to the Trust Loan);

 

(x)       as a recovery of any Assumption Fees, assumption application fees and Modification Fees then due and owing under the Whole Loan (and allocable to the Trust Loan);

 

(xi)      as a recovery of any other amounts then due and owing under the Trust Loan other than remaining unpaid principal (if both consent fees and Operating Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Operating Advisor Consulting Fees); and

 

(xii)     as a recovery of any remaining principal of the Trust Loan to the extent of its entire remaining unpaid principal balance;

 

provided that, to the extent required under the REMIC Provisions, payments or proceeds received with respect to any partial release of the Mortgaged Property (including following a condemnation) at a time when the loan-to-value ratio of the Whole Loan exceeds 125% (based solely on the value of real property and excluding personal property and going concern value) must be allocated to reduce the principal balance of the Whole Loan in the manner permitted by such REMIC Provisions.

 

(f)       Collections by or on behalf of the Trust in respect of the REO Property (exclusive of amounts to be allocated to the payment of the costs of operating, managing, leasing, maintaining and disposing of the REO Property and exclusive of any amounts payable to the Companion Loan Holder pursuant to the Co-Lender Agreement) shall be deemed to be allocated for purposes of collecting amounts due under the Whole Loan in the following order of priority:

 

(i)       as a recovery of any unreimbursed Advances with respect to the Trust Loan or the Whole Loan with respect to Property Advances or Nonrecoverable Advances and unpaid interest at the Advance Rate on such Advances and, if applicable, unreimbursed and unpaid Additional Trust Fund Expenses with respect to the Whole Loan;

 

(ii)      as a recovery of Nonrecoverable Advances and any interest at the Advance Rate thereon to the extent previously allocated to principal collections with respect to the Trust Loan or Whole Loan, as applicable;

 

(iii)     to the extent not previously allocated pursuant to clause (i) above, as a recovery of accrued and unpaid interest on the Trust Loan (exclusive of Default Interest) to the extent of the excess of (A) accrued and unpaid interest on the Trust Loan at the Trust Loan Rate to, but not including, the Due Date in the Collection Period in which such collections were received, over (B) the sum of (x) the cumulative amount of the reductions (if any) in the amount of related P&I Advances for the Trust Loan that have

 

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theretofore occurred under Section 4.07(e) of this Agreement in connection with related Appraisal Reduction Amounts (to the extent that collections have not been allocated as a recovery of accrued and unpaid interest pursuant to clause (v) below or Section 1.02(e)(v) on earlier dates) and (y) Accrued AB Loan Interest allocable to the Trust Loan;

 

(iv)      to the extent not previously allocated pursuant to clause (i) above, as a recovery of principal of the Trust Loan to the extent of its entire unpaid principal balance;

 

(v)       as a recovery of (a) accrued and unpaid interest on the Trust Loan to the extent of the cumulative amount of the reductions (if any) in the amount of related P&I Advances for the Trust Loan that have theretofore occurred under Section 4.07(e) of this Agreement in connection with related Appraisal Reduction Amounts (b) Accrued AB Loan Interest (in each of clause (a) and (b), to the extent that collections have not theretofore been allocated as a recovery of accrued and unpaid interest pursuant to this clause (v) or Section 1.02(e)(v) on earlier dates);

 

(vi)      as a recovery of any Prepayment Charge then due and owing under the Trust Loan;

 

(vii)     as a recovery of any late payment charges and Default Interest then due and owing under the Whole Loan (and allocable to the Trust Loan);

 

(viii)    as a recovery of any Assumption Fees, assumption application fees and Modification Fees then due and owing under the Whole Loan; and

 

(ix)       as a recovery of any other amounts then due and owing under the Trust Loan other than remaining unpaid principal (including as a recovery of any Operating Advisor Consulting Fees then due and owing to the Operating Advisor).

 

(g)       The applications of amounts received in respect of the Trust Loan pursuant to paragraph (e) of this Section 1.02 shall be determined by the Master Servicer in accordance with the Servicing Standard. The applications of amounts received in respect of the Trust Loan or any REO Property pursuant to paragraph (f) of this Section 1.02 shall be determined by the Special Servicer in accordance with the Servicing Standard.

 

(h)       All net present value calculations and determinations made hereunder with respect to the Trust Loan or the Mortgaged Property or REO Property (including for purposes of the definition of “Servicing Standard”) shall be made in accordance with the Loan Documents or, in the event the related Loan Documents are silent, using the Calculation Rate.

 

Section 1.03 Certain Constructions. For purposes of this Agreement, references to the most or next most subordinate Class of Certificates outstanding at any time shall mean the most or next most subordinate Class of Certificates then outstanding as among the Class A, Class X-A, Class B, Class C, Class D and Class E Certificates. For purposes of this Agreement, each Class of Certificates (other than the Class LR and Class R Certificates) shall be deemed to be outstanding only to the extent its respective Certificate Balance or Notional Balance, as

 

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applicable, has not been reduced to zero. For purposes of this Agreement, the Class R and Class LR Certificates shall be outstanding so long as the Trust Fund has not been terminated pursuant to Section 9.01 of this Agreement or any other Class of Certificates remains outstanding.

 

ARTICLE II

CONVEYANCE OF the MORTGAGE LOAN;
ORIGINAL ISSUANCE OF CERTIFICATES

 

Section 2.01 Conveyance of the Trust Loan; Assignment of Trust Loan Purchase Agreement. (a) The Depositor, concurrently with the execution and delivery hereof on the Closing Date, does hereby establish a trust designated as “COMM 2016-667M Mortgage Trust”, appoint the Trustee as trustee of the Trust Fund and sell, transfer, assign, set over and otherwise convey to the Trustee without recourse (except to the extent herein provided) all the right, title and interest of the Depositor in and to the Trust Loan, including all rights to payment in respect thereof, except as set forth below, and any security interest thereunder (whether in real or personal property and whether tangible or intangible) in favor of the Depositor, and a security interest in all Reserve Accounts, Lock-Box Accounts, Cash Collateral Accounts and all other assets to the extent included or to be included in the Trust Fund for the benefit of the Certificateholders. Such transfer and assignment includes all interest and principal due on or with respect to the Trust Loan after the Cut-off Date. The Depositor, concurrently with the execution and delivery hereof, does also hereby transfer, assign, set over and otherwise convey to the Trustee without recourse (except to the extent provided herein), for the benefit of the Certificateholders, all the right, title and interest of the Depositor in, to and under the Trust Loan Purchase Agreement as provided therein (excluding Sections 6(f)-(h) and 9 of the Trust Loan Purchase Agreement, and excluding the Depositor’s rights and remedies under the GACC Indemnification Agreement) to the extent related to the Trust Loan. The Depositor shall cause the Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts relating to the Whole Loan to be transferred to and held in the name of the Master Servicer on behalf of the Trustee as successor to the Trust Loan Seller.

 

In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Custodian, with copies to the Master Servicer and the Special Servicer, the following documents or instruments with respect to the Whole Loan so assigned (provided, however, that the original of documents specified in items (xix) and (xx) shall be delivered to the Master Servicer):

 

(i)        each original Trust Note, bearing, or accompanied by, all prior or intervening endorsements, endorsed by the most recent endorsee prior to the Trustee or, if none, by the Originator, without recourse, either in blank or to the order of the Trustee in the following form: “Pay to the order of Wells Fargo Bank, National Association, as Trustee, in trust for the benefit of the Holders of COMM 2016-667M Mortgage Trust Commercial Mortgage Pass-Through Certificates, without recourse”;

 

(ii)        the original (or a copy thereof certified from the applicable recording office) of the Mortgage and, if applicable, the originals (or copies thereof certified from

 

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the applicable recording office) of any intervening assignments thereof showing a complete chain of assignment from the Originator of the Whole Loan to the most recent assignee of record thereof prior to the Trustee, if any, in each case with evidence of recording indicated thereon;

 

(iii)       an original Assignment of Mortgage, in recordable form, executed by the most recent assignee of record thereof prior to the Trustee or, if none, by the Originator, either in blank or in favor of the Trustee in the following form: “Wells Fargo Bank, National Association, as Trustee, in trust for the benefit of the Holders of COMM 2016-667M Mortgage Trust Commercial Mortgage Pass-Through Certificates (and the Companion Loan Holder)”;

 

(iv)       (A) an original or copy of any related security agreement (if such item is a document separate from the Mortgage) and, if applicable, the originals or copies of any intervening assignments thereof showing a complete chain of assignment from the Originator of the Whole Loan to the most recent assignee thereof prior to the Trustee, if any; and (B) an original assignment of any related security agreement (if such item is a document separate from the Mortgage) executed by the most recent assignee thereof prior to the Trustee or, if none, by the Originator, either in blank or in favor of the Trustee in the following form: “Wells Fargo Bank, National Association, as Trustee, in trust for the benefit of the Holders of COMM 2016-667M Mortgage Trust Commercial Mortgage Pass-Through Certificates (and the Companion Loan Holder)”, which assignment may be included as part of the corresponding Assignment of Mortgage referred to in clause (iii) above;

 

(v)        (A) stamped or certified copies of any UCC financing statements and continuation statements which were filed in order to perfect (and maintain the perfection of) any security interest held by the Originator of the Whole Loan (and each assignee of record prior to the Trustee) in and to the personalty of the Borrower at the Mortgaged Property (in each case with evidence of filing or recording thereon) and which were in the possession of the Trust Loan Seller (or their agents) at the time the Mortgage Files were delivered to the Custodian, together with original UCC-2 or UCC-3 assignment of financing statements showing a complete chain of assignment from the secured party named in such UCC-1 financing statement to the most recent assignee of record thereof prior to the Trustee, if any, and (B) if any such security interest is perfected and the earlier UCC financing statements and continuation statements were in the possession of the Trust Loan Seller, an assignment of UCC financing statement by the most recent assignee of record prior to the Trustee or, if none, by the Originator, evidencing the transfer of such security interest, either in blank or in favor of the Trustee in the following form: “Wells Fargo Bank, National Association, as Trustee, in trust for the benefit of the Holders of COMM 2016-667M Mortgage Trust Commercial Mortgage Pass-Through Certificates (and the Companion Loan Holder)”; provided that other evidence of filing or recording reasonably acceptable to the Trustee may be delivered in lieu of delivering such UCC financing statements including, without limitation, evidence of such filed or recorded UCC financing statement as shown on a written UCC search report from a reputable search firm, such as CSC/LexisNexis Document Solutions, Corporation Service Company, CT Corporation System and the like or printouts of on-

 

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line confirmations from such UCC filing or recording offices or authorized agents thereof;

 

(vi)       the original or a copy of the Loan Agreement relating to the Whole Loan;

 

(vii)      the original or a copy of the lender’s title insurance policy issued in connection with the origination of the Whole Loan, together with all endorsements or riders (or copies thereof) that were issued with or subsequent to the issuance of such policy, insuring the priority of the Whole as a first lien on the Mortgaged Property, or, subject to Section 2(d) of the Trust Loan Purchase Agreement, a “marked up” commitment to insure marked as binding and countersigned by the related insurer or its authorized agent (which may be a pro forma or specimen title insurance policy which has been accepted or approved as binding in writing by the related title insurance company), or, subject to Section 2(d) of the Trust Loan Purchase Agreement, an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company;

 

(viii)     (A) the original or a copy of the related Assignment of Leases and Rents (if such item is a document separate from the Mortgage) and, if applicable, the originals or copies of any intervening assignments thereof showing a complete chain of assignment from the Originator of the Whole Loan to the most recent assignee of record thereof prior to the Trustee, if any, in each case with evidence of recording thereon; and (B) an original or copy of an assignment of any related Assignment of Leases and Rents (a “Reassignment of Assignment of Leases and Rents”) (if such item is a document separate from the Mortgage), in recordable form (except for missing recording information and, if delivered in blank, except for the name of the assignee), executed by the most recent assignee of record thereof prior to the Trustee or, if none, by the Originator, either in blank or in favor of the Trustee in the following form: “Wells Fargo Bank, National Association, as Trustee, in trust for the benefit of the Holders of COMM 2016-667M Mortgage Trust Commercial Mortgage Pass-Through Certificates” (and the Companion Loan Holder)”, which assignment may be included as part of the corresponding Assignment of Mortgage referred to in clause (iii) above;

 

(ix)       the original or a copy of any environmental indemnity agreements and copies of any environmental insurance policies pertaining to the Mortgaged Property required in connection with origination of the Whole Loan, if any, and copies of Environmental Reports;

 

(x)        an original or a copy of the Assignment of Management Agreement and originals or copies of the currently effective Management Agreement, if any, for the Mortgaged Property;

 

(xi)        the original or copy of the ground lease, if applicable, and any related lessor estoppel or similar agreement or a copy thereof, if any;

 

(xii)       an original Assignment of Agreements, Licenses, Permits and Contracts, executed by the most recent assignee of record thereof prior to the Trustee or, if none, by the Originator, either in blank or in favor of the Trustee in the following form: “Wells

 

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Fargo Bank, National Association, as Trustee, in trust for the benefit of the Holders of COMM 2016-667M Mortgage Trust Commercial Mortgage Pass-Through Certificates (and the Companion Loan Holder)”;

 

(xiii)      if the related assignment of contracts is separate from the Mortgage, the original executed version of such assignment of contracts or a copy thereof and the assignment thereof to the Trustee (in such capacity, for the benefit of the Certificateholders and the Companion Loan Holder);

 

(xiv)      if any related Lock-Box Agreement or Cash Collateral Account Agreement is separate from the Mortgage or Loan Agreement, a copy thereof; with respect to the Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts, if any, a copy of the UCC-1 financing statements, if any, submitted for filing with respect to the related mortgagee’s security interest in the Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts and all funds contained therein (and UCC-3 assignments of financing statements assigning such UCC-1 financing statements to the Trustee (in such capacity, for the benefit of the Certificateholders and the Companion Loan Holder));

 

(xv)       originals or copies of all assumption, modification, written assurance and substitution agreements, with evidence of recording thereon if appropriate, in those instances where the terms or provisions of the Mortgage, Trust Notes or any related security document have been modified or the Whole Loan has been assumed;

 

(xvi)      the original or a copy of any guaranty of the obligations of the Borrower under the Whole Loan together with, as applicable, (A) the original or copies of any intervening assignments of such guaranty showing a complete chain of assignment from the Originator of the Whole Loan to the most recent assignee thereof prior to the Trustee, if any, and (B) an original assignment of such guaranty executed by the most recent assignee thereof prior to the Trustee or, if none, by the Originator;

 

(xvii)     [Reserved];

 

(xviii)    a copy of the Co-Lender Agreement and any mezzanine loan intercreditor agreement;

 

(xix)       the original (or copy, if the original is held by the Master Servicer pursuant to Section 2.01(c)) of any letter of credit held by the lender as beneficiary or assigned as security for the Whole Loan;

 

(xx)        the appropriate assignment or amendment documentation related to the assignment to the Trust of any letter of credit securing the Whole Loan (or copy thereof, if the original is held by the Master Servicer pursuant to Section 2.01(c)) which entitles the Master Servicer on behalf of the Trust and, with respect to the Whole Loan, the Companion Loan Holder, to draw thereon; and

 

(xxi)       an original or a copy of the Cash Management Agreement;

 

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provided that whenever the term “Mortgage File” is used to refer to documents actually received by the Depositor or the Custodian, such term shall not be deemed to include such documents and instruments required to be included therein unless they are actually so received. The original assignments referred to in clauses (iii), (iv)(B) and (xvi)(B) above, may be in the form of one or more instruments in recordable form in any applicable filing or recording offices.

 

On or prior to the Closing Date, the Trust Loan Seller shall retain a third party vendor (which may be the Trustee or the Custodian) to complete the assignment and recordation or filing of the Loan Documents in the name of the Trustee on behalf of the Certificateholders and the Companion Loan Holder. On or promptly following the Closing Date, the Trust Loan Seller shall (A) promptly deliver or cause to be delivered to such third party vendor recorded copies of the Mortgage and the documents described in Section 2.01(a)(iii), (v) and (xiv) and (B) cause such third party vendor, at the expense of the Trust Loan Seller, (1) to promptly prepare and record (in favor of the Trustee, in trust for the Holders of COMM 2016-667M Mortgage Trust Commercial Mortgage Pass-Through Certificates) in the appropriate public recording office in no event later than 30 Business Days following the receipt thereof, each Assignment of Mortgage referred to in Section 2.01(a)(iii) which has not yet been submitted for recording; and (2) to prepare and file in the appropriate public filing office each UCC assignment of financing statement referred to in Section 2.01(a)(v)(B) and (xiv) which has not yet been submitted for filing or recording in no event later than 60 days following the receipt thereof. Each such document shall reflect that the recorded original should be returned by the public recording office to the Custodian or its designee following recording, and each such document shall reflect that the file copy thereof should be returned to the Custodian or its designee following filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage or Assignment of Leases and Rents, if applicable, the Custodian shall use commercially reasonable efforts to obtain therefrom a certified copy of the recorded original, at the expense of the Depositor. In the event that any such document or instrument in respect of the Whole Loan is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, the Trust Loan Seller shall promptly prepare or cause the preparation of a substitute thereof or cure or cause the curing of such defect, as the case may be, and shall thereafter deliver the substitute or corrected document to or at the direction of the Custodian for recording or filing, as appropriate, at the expense of the Trust Loan Seller (as set forth in the Trust Loan Purchase Agreement). The Trust Loan Seller shall, promptly upon receipt of the original recorded or filed copy (and in no event later than five Business Days following such receipt) deliver such original to the Custodian, with evidence of filing or recording thereon. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains the original Mortgage, Assignment of Mortgage or Assignment of Leases and Rents, if applicable, after any has been recorded, the obligations of the Trust Loan Seller under the Trust Loan Purchase Agreement shall be deemed to have been satisfied upon delivery to the Custodian of a certified copy of the recorded original of such Mortgage, Assignment of Mortgage or Assignment of Leases and Rents, if applicable.

 

If the Trust Loan Seller cannot deliver, or cause to be delivered, as to the Whole Loan, the original or a copy of the related lender’s title insurance policy referred to in Section 2.01(a)(vii) solely because such policy has not yet been issued, the delivery requirements of this Section 2.01 will be deemed to be satisfied as to such missing item, and such missing item will

 

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be deemed to have been included in the Mortgage File by delivery to the Custodian of a binder marked as binding and countersigned by the title insurer or its authorized agent (which may be a pro forma or specimen title insurance policy which has been accepted or approved as binding in writing by the related title insurance company) or an acknowledged closing instruction or escrow letter, and the Trust Loan Seller shall be required to deliver to the Custodian, promptly following the receipt thereof, the original related lender’s title insurance policy (or a copy thereof). Copies of recorded or filed Assignments of Mortgage and UCC assignments of financing statements shall be held by the Custodian.

 

Subject to the third preceding paragraph, all original documents relating to the Whole Loan which are not delivered to the Custodian are and shall be held by the Depositor or the Master Servicer (or a Sub-Servicer on its behalf), as the case may be, in trust for the benefit of the Certificateholders and the Companion Loan Holder. In the event that any such original document is required pursuant to the terms of this Section to be a part of the Mortgage File in order to effectuate the purposes of this Agreement, such document shall be delivered promptly to the Custodian.

 

(b)       In connection with the Depositor’s assignment pursuant to subsection (a) above, the Depositor shall direct, and hereby represents and warrants that it has directed, the Trust Loan Seller pursuant to the Trust Loan Purchase Agreement to deliver to and deposit with or cause to be delivered to and deposited with, (i) the Custodian, on or before the Closing Date, for the Trust Loan so assigned, among other things, the original Trust Notes, the original or a copy of the Mortgage and any intervening assignments thereof, the original or a copy of the title policy for the Trust Loan, a copy of any ground lease, if applicable, for the Trust Loan and an original (or copy, if the original is held by the Master Servicer pursuant to Section 2.01(c)) of any letters of credit held by the lender as beneficiary or assigned as security for the Trust Loan, and, within 30 days following the Closing Date, the remaining applicable documents referred to in Section 2.01(a) for the Whole Loan, in each case with copies to the Master Servicer and (ii) the Master Servicer, on or before the Closing Date, all documents and records that are part of each applicable Servicing File. If the Trust Loan Seller cannot deliver, or cause to be delivered, as to the Trust Loan, the original Trust Note, the Trust Loan Seller shall deliver a copy or duplicate original of the Trust Note, together with an affidavit certifying that the original thereof has been lost or destroyed and an indemnification in favor of the Certificate Administrator, the Trustee and the Custodian.

 

If the Trust Loan Seller or the Depositor cannot deliver, or cause to be delivered, as to the Whole Loan, the original or a copy of any of the documents and/or instruments referred to in Section 2.01(a)(ii), Section 2.01(a)(v)(A), Section 2.01(a)(viii), Section 2.01(a)(xv) and Section 2.01(a)(xvii) and the UCC financing statements and UCC assignments of financing statements referred to in Section 2.01(a)(xiv), with evidence of recording or filing thereon, solely because of a delay caused by the public recording or filing office where such document or instrument has been delivered for recordation or filing, or because such original recorded or filed document has been lost or returned from the recording or filing office and subsequently lost, as the case may be, the delivery requirements of Section 2.01 shall be deemed to have been satisfied as to such missing item, and such missing item shall be deemed to have been included in the Mortgage File, provided that a copy of such document or instrument (without evidence of recording or filing thereon, but certified (which certificate may relate to multiple documents

 

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and/or instruments) by the applicable public recording or filing office, the applicable title insurance company or the Trust Loan Seller to be a true and complete copy of the original thereof submitted for recording or filing, as the case may be) has been delivered to the Custodian within 30 days after the Closing Date, and either the original of such missing document or instrument, or a copy thereof, with evidence of recording or filing, as the case may be, thereon, is delivered to the Custodian within 180 days after the Closing Date (or within such longer period after the Closing Date so long as the Trust Loan Seller has provided the Custodian with evidence of such recording or filing, as the case may be, or has certified to the Custodian as to the occurrence of such recording or filing, as the case may be, and is, as certified to the Custodian and the Trustee no less often than quarterly, in good faith attempting to obtain from the appropriate county recorder’s or filing office such original or copy, provided such extensions do not exceed 24 months in the aggregate).

 

(c)       Notwithstanding anything herein to the contrary, with respect to the documents referred to in Section 2.01(a)(xix) and Section 2.01(a)(xx) of this Agreement, the Master Servicer shall hold the original of each such document in trust on behalf of the Trust in order to draw on such letter of credit on behalf of the Trust and the Trust Loan Seller shall be deemed to have satisfied the delivery requirements of the Trust Loan Purchase Agreement and this Section 2.01 of this Agreement by delivering the original of each such document to the Master Servicer, which shall forward a copy of the applicable document to the Custodian. The Trust Loan Seller shall pay any costs of assignment or amendment of such letter of credit (which amendment shall change the beneficiary of the letter of credit to the Trust in care of the Master Servicer) required in order for the Master Servicer to draw on such letter of credit on behalf of the Trust. In the event that the documents specified in clause (a)(xx) of Section 2.01(a) of this Agreement are missing because the related assignment or amendment documents have not been completed, the Trust Loan Seller shall take all necessary steps to enable the Master Servicer to draw on the related letter of credit on behalf of the Trust including, if necessary, drawing on the letter of credit in its own name pursuant to written instructions from the Master Servicer and immediately remitting such funds (or causing such funds to be remitted) to the Master Servicer.

 

Section 2.02 Acceptance by Custodian and the Trustee. By its execution and delivery of this Agreement, the Trustee acknowledges the assignment to it of the Trust Loan in good faith without notice of adverse claims and declares that the Custodian holds and will hold such documents and all others delivered to it constituting the Mortgage File (to the extent the documents constituting the Mortgage File are actually delivered to the Custodian) for the Trust Loan assigned to the Trustee hereunder in trust, upon the conditions herein set forth, for the use and benefit of all present and future Certificateholders and Companion Loan Holder.

 

The Custodian hereby certifies to each of the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer, the Operating Advisor and the Trust Loan Seller that except as identified in the Custodian’s closing date certification, which shall be delivered no later than two Business Days after the Closing Date, and which is attached as Exhibit N-1 to this Agreement, each Trust Note is in its possession and has been reviewed by the Custodian and (A) appears regular on its face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the Whole Loan and each of the documents specified in Section 2.01(a)(ii), Section 2.01(a)(vii) and Section 2.01(a)(xix) of this Agreement

 

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have been received, have been executed, appear to be what they purport to be, purport to be recorded or filed (as applicable) and have not been torn or mutilated or otherwise defaced, and that such documents relate to the Whole Loan identified in the Mortgage Loan Schedule. If the Custodian does not send a certification on the Closing Date, it shall send an email confirmation to the Trustee and the Master Servicer on the Closing Date that it has received the Trust Note (or a copy or a lost note affidavit, as permitted), subject to any exceptions noted therein.

 

On or about the 60th day following the Closing Date (and, if any exceptions are noted, again on or about the 90th day following the Closing Date and monthly thereafter until the earliest of (i) the second anniversary of the Closing Date, (ii) the day on which all material exceptions have been removed and (iii) the day on which the Trust Loan Seller has repurchased or substituted for the Trust Loan), the Custodian shall review each Mortgage File and shall certify to each of the Depositor, the Trust Loan Seller, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer and the Operating Advisor in the form attached as Exhibit N-2 to this Agreement that all documents (other than documents referred to in clauses Section 2.01(a)(xix) and Section 2.01(a)(xx) of this Agreement, which shall be delivered to the Master Servicer and the documents referred to in clauses (iii), (v)(B) and (viii) of Section 2.01(a) of this Agreement and the assignments of financing statements referred to in clause (xiv) of Section 2.01(a) of this Agreement, which shall be delivered for filing or recording by the Trust Loan Seller as provided herein) referred to in Section 2.01(a) above (in the case of the documents referred to in Section 2.01(a)(iv), (v), (vi), (vii) (in the case of any endorsement thereto), (viii) and (ix) through (xxi) of this Agreement, as identified to it in writing as a document required to be delivered by the Trust Loan Seller) and any original recorded documents included in the delivery of the Mortgage File have been received, have been executed, appear to be what they purport to be, purport to be recorded or filed (as applicable) and have not been torn in any materially adverse manner or mutilated or otherwise defaced, and that such documents relate to the Whole Loan. In so doing, the Custodian may rely on the purported due execution and genuineness of any such document and on the purported genuineness of any signature thereon.

 

If at the conclusion of such review any document or documents constituting a part of the Mortgage File has not been executed or received, has not been recorded or filed (if required), is unrelated to the Whole Loan, appear not to be what they purport to be or has been torn in any materially adverse manner or mutilated or otherwise defaced, the Custodian shall promptly so notify (in the form attached as Exhibit M to this Agreement) the Trustee, the Depositor, the Certificate Administrator, the Master Servicer, the Special Servicer, the Operating Advisor and the Trust Loan Seller by providing a written report, setting forth for the affected Whole Loan, with particularity, the nature of the defective or missing document. The Depositor shall or shall cause the Trust Loan Seller to deliver to the Custodian an executed, recorded or undamaged document, as applicable, or, if the failure to deliver such document in such form constitutes a Material Document Defect, the Depositor shall cause the Trust Loan Seller to cure, repurchase or make an indemnification payment with respect to the Whole Loan in the manner provided in Section 2.03(e) of this Agreement. None of the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian or the Trustee shall be responsible for any loss, cost, damage or expense to the Trust Fund resulting from any failure to receive any document constituting a portion of the Mortgage File noted on such a report or for any failure by the Depositor to use its best efforts to deliver any such document.

 

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Contemporaneously with its execution of this Agreement, the Depositor shall cause the Trust Loan Seller to deliver, a power of attorney substantially in the form of Exhibit C to the Trust Loan Purchase Agreement to the Master Servicer and Special Servicer, to take such other action as is necessary to effect the delivery, assignment and/or recordation of any documents and/or instruments relating to the Whole Loan which has not been delivered, assigned or recorded at the time required for enforcement by the Trust Fund. Pursuant to the Trust Loan Purchase Agreement, the Trust Loan Seller shall be required to effect (at the expense of the Trust Loan Seller) the assignment and recordation of its the Loan Documents until the assignment and recordation of all Loan Documents has been completed.

 

In reviewing any Mortgage File pursuant to the third preceding paragraph of Section 2.01 of this Agreement, the Master Servicer shall have no responsibility to cause the Custodian or Trustee to, and the Custodian or Trustee will have no responsibility to, examine any opinions or determine whether any document is legal, valid, binding, sufficient, duly authorized or enforceable, whether the text of any assignment or endorsement is in proper or recordable form (except, if applicable, to determine if the Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, whether a blanket assignment is permitted in any applicable jurisdiction, or whether any Person executing any document or rendering any opinion is authorized to do so or whether any signature thereon is genuine.

 

Section 2.03 Representations, Warranties and Covenants of the Depositor; Repurchase of Trust Loan. (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;

 

(ii)      The Depositor has taken all necessary 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 Trust Loan in accordance with this Agreement;

 

(iii)     This Agreement has been duly and validly executed and delivered by the Depositor and 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 in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, liquidation, receivership, moratorium or other laws relating to or affecting creditors’ rights generally, or by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(iv)     The execution and delivery of this Agreement and the performance of its obligations hereunder by the Depositor will not conflict with any provision of its certificate of incorporation or bylaws, or any law or regulation to which the Depositor is subject, or conflict with, result in a breach of or constitute a default under (or an event which with notice or lapse of time or both would constitute a default under) any of the

 

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terms, conditions or provisions of any agreement or instrument to which the Depositor is a party or by which it is bound, or any law, 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;

 

(v)          The certificate of incorporation of the Depositor provides that the Depositor is permitted to engage in only the following activities:

 

(A)       to acquire, own, hold, sell, transfer, assign, pledge and otherwise deal with the following: (I) “fully-modified pass-through” certificates (“GNMA Certificates”) issued and guaranteed as to timely payment of principal and interest by the Government National Mortgage Association (“GNMA”), a wholly-owned corporate instrumentality of the United States within the Department of Housing and Urban Development organized and existing under Title III of the National Housing Act of 1934; (II) Guaranteed Mortgage Pass-Through Certificates (“FNMA Certificates”) issued and guaranteed as to timely payment of principal and interest by FNMA; (III) Mortgage Participation Certificates (“FHLMC Certificates”) issued and guaranteed as to timely payment of interest and ultimate or full payment of principal by FHLMC; (IV) any other participation certificates, pass-through certificates or other obligations or interests backed directly or indirectly by mortgage loans and issued or guaranteed by GNMA, FNMA or FHLMC (collectively with the GNMA Certificates, FNMA Certificates and FHLMC Certificates, the “Agency Securities”); (V) mortgage-backed securities, which securities need not be issued or guaranteed, in whole or in part, by any governmental entity, issued by one or more private entities (hereinafter referred to as “Private Securities”); (VI) mortgage loans secured by first, second or more junior liens on one-to-four family residential properties, multifamily properties that are either rental apartment buildings or projects containing five or more residential units or commercial properties, regardless of whether insured or guaranteed in whole or in part by any governmental entity, or participation interests or stripped interests in such mortgage loans (“Mortgage Assets”); (VII) conditional sales contracts and installment sales or loan agreements or participation interests therein secured by manufactured housing (“Contract”); and (VIII) receivables of third-parties or other financial assets of third-parties, either fixed or revolving, that by their terms convert into cash within a finite time period (“Other Assets”);

 

(B)       to loan its funds to any person under loan agreements and other arrangements which are secured by Agency Securities, Private Securities, Mortgage Assets, Contracts and/or Other Assets;

 

(C)       to authorize, issue, sell and deliver bonds or other evidences of indebtedness that are secured by Agency Securities, Private Securities, Mortgage Assets, Contracts and/or Other Assets;

 

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(D)       to authorize, issue, sell and deliver certificates evidencing beneficial ownership interests in pools of Agency Securities, Private Securities, Mortgage Assets, Contracts and/or Other Assets; and

 

(E)       to engage in any activity and to exercise any powers permitted to corporations under the laws of the State of Delaware that are incident to the foregoing and necessary or convenient to accomplish the foregoing.

 

Capitalized terms defined in this clause (v) shall apply only to such clause;

 

(vi)      There is no action, suit, proceeding or investigation pending or threatened against the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the ability of the Depositor to carry out its obligations under this Agreement;

 

(vii)     No consent, approval, authorization or order of, or registration or filing with, or notice to any court or governmental agency or body, is required for the execution, delivery and performance by the Depositor of or compliance by the Depositor with this Agreement, or if required, such approval has been obtained prior to the Cut-off Date; and

 

(viii)    The Trustee, if not the owner of the Trust Loan, will have a valid and perfected security interest of first priority in the Trust Loan and any proceeds thereof.

 

(b)       The Depositor hereby represents and warrants with respect to the Trust Loan that:

 

(i)        Immediately prior to the transfer and assignment to the Trustee, the Trust Note and the Mortgage were not subject to an assignment or pledge, and the Depositor had good title to, and was the sole owner of, the Trust Loan and had full right to transfer and sell the Trust Loan to the Trustee free and clear of any encumbrance, equity, lien, pledge, charge, claim or security interest;

 

(ii)       The Depositor is transferring the Trust Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering the Trust Loan;

 

(iii)      The related Assignment of Mortgage constitutes the legal, valid and binding assignment of the Mortgage from the Depositor to the Trustee; and

 

(iv)      No claims have been made by the Depositor under the lender’s title insurance policy, and the Depositor has not done anything which would impair the coverage of such lender’s title insurance policy.

 

(c)       It is understood and agreed that the representations and warranties set forth in this Section 2.03 shall survive delivery of the Mortgage File to the Custodian until the termination of this Agreement, and shall inure to the benefit of the Certificateholders, the Companion Loan Holder, the Certificate Administrator, the Trustee, the Custodian, the Master Servicer and the Special Servicer.

 

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(d)       If the Master Servicer or the Special Servicer (i) receives a Repurchase Communication of a request or demand for repurchase or replacement of the Trust Loan because of a Breach or a Defect (each as defined below) (any such request or demand, 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), (ii) receives a Repurchase Communication of a withdrawal of a Repurchase Request by the Person making such Repurchase Request (a “Repurchase Request Withdrawal”), (iii) receives a Repurchase Communication that the Trust Loan has been repurchased or replaced (a “Repurchase”), or (iv) receives a Repurchase Communication of the rejection of a Repurchase Request (a “Repurchase Request Rejection”), then such Person shall deliver written notice of such Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection (each such notice, a “Rule 15Ga-1 Notice”) to the Depositor and the Trust Loan Seller, in each case within ten Business Days from such party’s receipt of a Repurchase Communication of such Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection, as applicable; provided, however, that if the Master Servicer receives notice of a Repurchase Request Withdrawal or Repurchase Request Rejection from the Special Servicer, the Master Servicer shall have no obligation to deliver such notice to any other party.

 

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

 

No Person that is required to provide a Rule 15Ga-1 Notice pursuant to this Section 2.03(d) (a “Rule 15Ga-1 Notice Provider”) shall be required to provide any information in a Rule 15Ga-1 Notice protected by the attorney-client privilege or attorney work product doctrines. The Trust Loan Purchase Agreement will provide that (i) any Rule 15Ga-1 Notice provided pursuant to this Section 2.03(d) is so provided only to assist the Trust Loan Seller, the Depositor and its 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 Rule 15Ga-1 Notice Provider and (B) no information provided pursuant to this Section 2.03(d) by a Rule 15Ga-1 Notice Provider, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Rule 15Ga-1 Notice Provider may have with respect to the Trust Loan Purchase Agreement, including with respect to any Repurchase Request that is the subject of a Rule 15Ga-1 Notice.

 

In the event that the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor or the Custodian receives a Repurchase Communication of a Repurchase Request or a Repurchase Request Withdrawal, then such party shall promptly forward such Repurchase Communication of such Repurchase Request or Repurchase Request Withdrawal to the Master Servicer, if relating to a Performing Loan, or to the Special Servicer, if relating to a Specially Serviced Loan or REO Property, and include the following statement in the related correspondence: “This is a “[Repurchase Request][Repurchase Request Withdrawal]” under Section 2.03(d) of the Trust and Servicing Agreement relating to the COMM 2016-667M

 

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Mortgage Trust Commercial Mortgage Pass-Through Certificates requiring action by you as the recipient of such Repurchase Request or Repurchase Request Withdrawal thereunder”. Upon receipt of such Repurchase Communication of such Repurchase Request or Repurchase Request Withdrawal by the Master Servicer or the Special Servicer, as applicable, such party shall be deemed to be the Repurchase Request Recipient of such Repurchase Communication of such Repurchase Request or Repurchase Request Withdrawal, and such party shall comply with the procedures set forth in this Section 2.03(d) with respect to such Repurchase Request or Repurchase Request Withdrawal. 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.

 

(e)       A “Defect” shall exist with respect to the Trust Loan if any document constituting a part of the Mortgage File has not been delivered within the time periods provided for in the Trust Loan Purchase Agreement, has not been properly executed, is missing, does not appear to be regular on its face or contains information that does not conform in any material respect with the corresponding information set forth in the Mortgage Loan Schedule. A “Breach” shall mean a breach of any representation or warranty of the Trust Loan Seller made pursuant to the Trust Loan Purchase Agreement with respect to the Trust Loan. If any party hereto discovers or receives notice of a Defect or a Breach, and if such Defect is a Material Document Defect or such Breach is a Material Breach, as applicable, then such party, on behalf of the Trust Fund, shall upon its actual knowledge thereof notify the Trust Loan Seller, the other parties hereto and the 17g-5 Information Provider (who shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement) and the Companion Loan Holder. If any such Defect or Breach materially and adversely affects the value of the Trust Loan, the value of the Mortgaged Property or the interests of the Trust in the Trust Loan hereunder or causes the Trust Loan to be other than a Qualified Mortgage, then such Defect shall constitute a “Material Document Defect” or such Breach shall constitute a “Material Breach,” as the case may be; provided, however, that if any of the documents specified in clauses (i), (ii), (vii) and (xix) of Section 2.01(a) of this Agreement are not delivered as required in the Trust Loan Purchase Agreement and certified as missing pursuant to Section 2.02 of this Agreement, it shall be deemed a Material Document Defect; provided, further, that no Defect (except as provided in the immediately preceding proviso and Defects that cause the Trust Loan to be other than a Qualified Mortgage) shall be considered to be a Material Document Defect unless the document with respect to which the Defect exists is required in connection with an imminent enforcement of the lender’s rights or remedies under the Trust Loan, defending any claim asserted by the Borrower or a third party with respect to the Trust Loan, establishing the validity or priority of any lien on any collateral securing the Trust Loan or for any immediate significant servicing obligation. The Custodian, the Certificate Administrator and the Trustee shall not be required to make any such determination absent written notice or direction from Certificateholders in accordance with Section 8.02(a)(iii). Promptly upon receiving written notice of any such Material Document Defect or Material Breach with respect to the Trust Loan, accompanied by a written demand to take the actions contemplated by this sentence from the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Custodian, on behalf of the Trust Fund, the Trust Loan Seller shall, not later than 90 days from the Trust Loan Seller’s receipt of such notice of, and such written demand to take action with respect to, such Material Document Defect or Material Breach, as the case may be (or, in the case of a Material Breach or Material Document Defect that would cause

 

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the Trust Loan not to be a Qualified Mortgage, within 90 days of the Trust Loan Seller or any party to this Agreement discovering such Material Breach or Material Document Defect) (any such 90-day period, the “Initial Resolution Period”), (i) cure the same in all material respects, (ii) repurchase the Trust Loan at the Repurchase Price in conformity with the Trust Loan Purchase Agreement or (iii) if such Material Document Defect or Material Breach is not related to the Trust Loan not being a Qualified Mortgage, indemnify the Trust for the losses directly related to such Material Breach or Material Document Defect, subject to receipt of No Downgrade Confirmation from each Rating Agency with respect to such action; provided that if (i) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (ii) such Material Document Defect or Material Breach is not related to the Trust Loan not being a Qualified Mortgage and (iii) the Trust Loan Seller has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach within the Initial Resolution Period, then the Trust Loan Seller shall have an additional period equal to the applicable Resolution Extension Period to complete such cure or, failing such cure, to repurchase the Trust Loan or indemnify the Trust as described above. Notwithstanding the foregoing, the failure to deliver to the Trustee and the Custodian copies of the UCC financing statements with respect to the Trust Loan shall not be a Material Document Defect.

 

(f)       In connection with any repurchase of the Trust Loan contemplated by this Section 2.03, (A) the Custodian, the Master Servicer (with respect to a Performing Loan) and the Special Servicer (with respect to a Specially Serviced Loan) shall each tender to the Trust Loan Seller or their designees all portions of the Mortgage File (in the case of the Custodian) and the Servicing File (in the case of the Master Servicer and the Special Servicer, as applicable) (including the original Trust Notes) and other documents pertaining to the Trust Loan possessed by it, upon delivery (i) to each of the Master Servicer or the Special Servicer, as applicable, of a trust receipt and (ii) to the Custodian by the Master Servicer or the Special Servicer, as applicable, of a Request for Release and an acknowledgement by the Master Servicer or Special Servicer, as applicable, of its receipt of the Repurchase Price from the Trust Loan Seller, (B) each document that constitutes a part of the Mortgage File that was endorsed or assigned to the Trustee shall be endorsed or assigned without recourse in the form of endorsement or assignment provided to the Custodian by the Trust Loan Seller, as the case may be, to the Trust Loan Seller as shall be necessary to vest in the Trust Loan Seller the legal and beneficial ownership of the repurchased Trust Loan to the extent such ownership was transferred to the Trustee (provided, however, that the Master Servicer or Special Servicer, as applicable, shall use reasonable efforts to cooperate in furnishing necessary information to the extent in its possession to the Trust Loan Seller in connection with the preparation by the Trust Loan Seller of such endorsement or assignment) and (C) the Certificate Administrator, the Master Servicer and the Special Servicer shall release, or cause the release of, any escrow payments and reserve funds held by or on behalf of the Certificate Administrator, the Master Servicer and the Special Servicer, as applicable, or on the Certificate Administrator’s, the Master Servicer’s and the Special Servicer’s, as applicable, behalf, in respect of the Trust Loan to the Trust Loan Seller.

 

(g)       The Master Servicer (with respect to a Performing Loan) and the Special Servicer (with respect to a Specially Serviced Loan) shall, for the benefit of the Certificateholders and the Trustee, use reasonable efforts to enforce the obligations of the Trust Loan Seller under Section 6 of the Trust Loan Purchase Agreement. Such enforcement,

 

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including, without limitation, the legal prosecution of claims, shall be carried out in accordance with the Servicing Standard. The Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer, as the case may be, shall be reimbursed for the reasonable costs of such enforcement: first, pursuant to Section 3.06 of this Agreement (with respect to the Trust Loan), out of the related Repurchase Price or indemnification amounts to the extent that such expenses are a specific component thereof; and second, if at the conclusion of such enforcement action it is determined that the amounts described in clause first are insufficient, then pursuant to Section 3.06 of this Agreement, out of general collections on the Trust Loan on deposit in the Collection Account in each case with interest thereon at the Advance Rate from the time such expense was incurred to, but excluding, the date such expense was reimbursed. To the extent the Trust Loan Seller prevails in such proceeding, the Trust Loan Seller shall be entitled to reimbursement from the Trust for all necessary and reasonable costs and expenses incurred in connection with such proceeding.

 

So long as document exceptions are outstanding, on each anniversary of the Closing Date, the Custodian shall prepare and forward to the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Operating Advisor and the Trust Loan Seller, a document exception report setting forth the then current status of any Defects related to the Mortgage Files in a format mutually agreed upon between the Custodian and the Trustee.

 

It is understood and agreed that Section 6 of the Trust Loan Purchase Agreement provides the sole remedy available to the Certificateholders and the Trustee on behalf of the Certificateholders respecting any Breach (including a Breach with respect to the Trust Loan failing to constitute a Qualified Mortgage) or any Defect.

 

(h)       In the event that any litigation is commenced which alleges facts which, in the judgment of the Depositor, could constitute a breach of any of the Depositor’s representations and warranties relating to the Trust Loan, the Depositor hereby reserves the right to conduct the defense of such litigation at its expense and shall not be required to obtain any consent from the Master Servicer or the Special Servicer, unless such defense results in any liability of the Master Servicer or the Special Servicer, as applicable.

 

(i)       If for any reason the Trust Loan Seller fails to fulfill its obligations under the Trust Loan Purchase Agreement with respect to the Trust Loan, the Master Servicer (with respect to a Performing Loan) and the Special Servicer (with respect to a Specially Serviced Loan) shall use reasonable efforts in enforcing any obligation of the Trust Loan Seller to cure or repurchase or make an indemnity payment with respect to the Trust Loan under the terms of the Trust Loan Purchase Agreement all at the expense of the Trust Loan Seller.

 

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Section 2.04 Representations, Warranties and Covenants of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Operating Advisor. (a) KeyBank National Association, as the Master Servicer, hereby represents and warrants with respect to itself to the Trustee (for its own benefit and the benefit of the Certificateholders and the Companion Loan Holder), the Depositor, the Certificate Administrator, the Special Servicer and the Operating Advisor, as of the Closing Date, that:

 

(i)       It is a national banking association, duly organized, validly existing, and is in good standing, under the laws of the United States of America and it is in compliance with the laws of each state (within the United States of America) in which the Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;

 

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

 

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

 

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

 

(v)      It is not in default with respect to any law, any order or decree of any court, or any order, regulation or demand of any federal, state, municipal or governmental agency, which default in its reasonable judgment is likely to materially and adversely affect the financial condition or its operations or its properties taken as a whole or its ability to perform its duties and obligations hereunder;

 

(vi)     No litigation is pending or, to the best of its knowledge, threatened against it which would prohibit it from entering into this Agreement or, in its good faith and reasonable judgment is likely to materially and adversely affect either its ability to perform its obligations under this Agreement or its financial condition;

 

(vii)    No consent, approval, authorization or order of any court or governmental agency or body is required for its execution, delivery and performance of, or compliance

 

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by it, with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for any consent, approval, authorization or order which has been obtained, or which, if not obtained would not have a materially adverse effect on the ability of it to perform its obligations hereunder; and

 

(viii)   Each of its officers and employees that has responsibilities concerning the servicing and administration of the Trust Loan is covered by errors and omissions insurance and the fidelity bond in the amounts and with the coverage required by this Agreement.

 

(b)      It is understood and agreed that the representations and warranties set forth in this Section shall survive delivery of the Mortgage File to the Trustee or the Custodian on behalf of the Trustee until the termination of this Agreement, and shall inure to the benefit of the Trustee, the Depositor, the Certificate Administrator, the Operating Advisor, the Companion Loan Holder and the Master Servicer or Special Servicer, as the case may be. Upon discovery by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor or a Responsible Officer of the Trustee or the Certificate Administrator (or upon written notice thereof from any Certificateholder) of a breach of any of the representations and warranties set forth in this Section which materially and adversely affects the interests of the Certificateholders, the Certificate Administrator, the Master Servicer, Special Servicer, the Operating Advisor, the Companion Loan Holder or the Trustee in the Trust Loan, the party discovering such breach shall give prompt written notice to the other parties hereto, the Companion Loan Holder and the Trust Loan Seller.

 

(c)       The Trustee hereby represents and warrants to the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor, the Certificateholders and the Companion Loan Holder as of the Closing Date, that:

 

(i)       The Trustee is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America and has full power, authority and legal right to own its properties and conduct its business as presently conducted and to execute, deliver and perform the terms of this Agreement.

 

(ii)      This Agreement has been duly authorized, executed and delivered by the Trustee and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding instrument enforceable against the Trustee in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights in general and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law).

 

(iii)     Neither the execution and delivery of this Agreement by the Trustee nor the consummation by the Trustee of the transactions herein contemplated to be performed by the Trustee, nor compliance by the Trustee with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any applicable law (subject to the appointment in accordance with such applicable law of any co-Trustee or separate Trustee required pursuant to this Agreement), governmental rule, regulation, judgment, decree or order binding on the Trustee or its properties or the

 

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organizational documents of the Trustee or the terms of any material agreement, instrument or indenture to which the Trustee is a party or by which it is bound which, in the Trustee’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Trustee to perform its obligations under this Agreement.

 

(iv)     The Trustee is not in violation of, and the execution and delivery of this Agreement by the Trustee and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court binding on the Trustee or any law, order or regulation of any federal, state, municipal or governmental agency having jurisdiction, or result in the creation or imposition of any lien, charge or encumbrance which, in any such event, would have consequences that would materially and adversely affect the ability of the Trustee to perform its obligations under this Agreement.

 

(v)      No consent, approval, authorization or order of, or registration or filing with, or notice to any court or governmental agency or body, is required for the execution, delivery and performance by the Trustee of or compliance by the Trustee with this Agreement, or if required, such approval has been obtained prior to the Cut-off Date or which, if not obtained, would have a materially adverse effect on the Trustee’s ability to perform its obligations hereunder.

 

(vi)     To the best of the Trustee’s knowledge, no litigation is pending or threatened against the Trustee which would prohibit its entering into or materially and adversely affect its ability to perform its obligations under this Agreement or the Indemnification Agreement, dated the Pricing Date, between the Trustee, the Depositor and the Initial Purchaser.

 

(d)      The Certificate Administrator hereby represents and warrants to the Depositor, the Trustee, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificateholders and the Companion Loan Holder as of the Closing Date, that:

 

(i)       The Certificate Administrator is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America and has full power, authority and legal right to own its property and conduct its business as presently conducted and to execute, deliver and perform the terms of this Agreement.

 

(ii)      This Agreement has been duly authorized, executed and delivered by the Certificate Administrator and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding instrument enforceable against the Certificate Administrator in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights in general and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law).

 

(iii)     Neither the execution and delivery of this Agreement by the Certificate Administrator nor the consummation by the Certificate Administrator of the transactions

 

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herein contemplated to be performed by the Certificate Administrator, nor compliance by the Certificate Administrator with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any applicable law, governmental rule, regulation, judgment, decree or order binding on the Certificate Administrator or its properties or the organizational documents of the Certificate Administrator or the terms of any material agreement, instrument or indenture to which the Certificate Administrator is a party or by which it is bound which, in the Certificate Administrator’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Certificate Administrator to perform its obligations under this Agreement.

 

(iv)     The Certificate Administrator is not in violation of, and the execution and delivery of this Agreement by the Certificate Administrator and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court binding on the Certificate Administrator or any law, order or regulation of any federal, state, municipal or governmental agency having jurisdiction, or result in the creation or imposition of any lien, charge or encumbrance which, in any such event, would have consequences that would materially and adversely affect the ability of the Certificate Administrator to perform its obligations under this Agreement;

 

(v)      No consent, approval, authorization or order of, or registration or filing with, or notice to any court or governmental agency or body, is required for the execution, delivery and performance by the Certificate Administrator of or compliance by the Certificate Administrator with this Agreement, or if required, such approval has been obtained prior to the Cut-off Date or which, if not obtained, would have a materially adverse effect on the Certificate Administrator’s ability to perform its obligations hereunder; and

 

(vi)     To the best of the Certificate Administrator’s knowledge, no litigation is pending or threatened against the Certificate Administrator which would prohibit its entering into or materially and adversely affect its ability to perform its obligations under this Agreement or the Indemnification Agreement, dated the Pricing Date, between the Certificate Administrator, the Depositor and the Initial Purchaser.

 

(e)      AEGON USA Realty Advisors, LLC, as the Special Servicer, hereby represents and warrants with respect to itself to the Trustee (for its own benefit and the benefit of the Certificateholders and the Companion Loan Holder), the Depositor, the Certificate Administrator, the Operating Advisor and the Master Servicer, as of the Closing Date, that:

 

(i)       It is a limited liability company, duly organized, validly existing, and is in good standing, under the laws of the State of Iowa and it is in compliance with the laws of each state (within the United States of America) in which the Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;

 

(ii)      Its execution and delivery of this Agreement, and its performance and compliance with the terms of this Agreement, do not (A) violate its organizational documents or (B) constitute a default (or an event which, with notice or lapse of time, or

 

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both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets, or (C) violate any law, rule, regulation, order, judgment or decree to which it or its property is subject, which, in the case of either (B) or (C), is likely to materially and adversely affect either its ability to perform its obligations under this Agreement or its financial condition;

 

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

 

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

 

(v)      It is not in default with respect to any law, any order or decree of any court, or any order, regulation or demand of any federal, state, municipal or governmental agency, which default in its reasonable judgment is likely to materially and adversely affect the financial condition or its operations or its properties taken as a whole or its ability to perform its duties and obligations hereunder;

 

(vi)     No litigation is pending or, to the best of its knowledge, threatened against it which would prohibit it from entering into this Agreement or, in its good faith and reasonable judgment is likely to materially and adversely affect either its ability to perform its obligations under this Agreement or its financial condition;

 

(vii)    No consent, approval, authorization or order of any court or governmental agency or body is required for its execution, delivery and performance of, or compliance by it, with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for any consent, approval, authorization or order which has been obtained, or which, if not obtained would not have a materially adverse effect on the ability of it to perform its obligations hereunder; and

 

(viii)   Each of its officers and employees that has responsibilities concerning the servicing and administration of the Trust Loan is covered by errors and omissions insurance and the fidelity bond in the amounts and with the coverage required by this Agreement.

 

(f)       The Operating Advisor hereby represents and warrants to and covenants with the Trustee (for its own benefit and the benefit of the Certificateholders), the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator and the Companion Loan Holder, as of the Closing Date, that:

 

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(i)         The Operating Advisor is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of New York and has full power, authority and legal right to own its properties and conduct its business as presently conducted and to execute, deliver and perform the terms of this Agreement;

 

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

 

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

 

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

 

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

 

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

 

(vii)       No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Operating

 

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Advisor of, or compliance by the Operating Advisor with, this Agreement or the consummation of the transactions of the Operating Advisor contemplated by this Agreement, except for any consent, approval, authorization or order which has been obtained, or which, if not obtained would not have a materially adverse effect on the ability of the Operating Advisor to perform its obligations hereunder; and

 

(viii)     The Operating Advisor is an Eligible Operating Advisor.

 

Section 2.05 Execution and Delivery of Certificates; Issuance of Lower-Tier Regular Interests. The Trustee acknowledges the assignment to it of the Trust Loan and the delivery of the Mortgage File to the Custodian (to the extent the documents constituting the Mortgage File is actually delivered to the Custodian), subject to the provisions of Section 2.01 and Section 2.02 of this Agreement and, concurrently with such delivery, (i) acknowledges and hereby declares that it holds the Trust Loan and the other assets included in the Lower-Tier REMIC on behalf of the Lower-Tier REMIC and the Holders of the Certificates; (ii) acknowledges the issuance of the Lower-Tier Regular Interests to the Depositor in exchange for the Trust Loan and other assets included in the Lower-Tier REMIC, (iii) acknowledges the contribution by the Depositor of the Lower-Tier Regular Interests to the Upper-Tier REMIC and hereby declares that it holds the Lower-Tier Regular Interests on behalf of the Upper-Tier REMIC and the Holders of the Certificates (other than the Class LR Certificates); and (iv) acknowledges the issuance of the Class LR Certificates and, in exchange for the Lower-Tier Regular Interests, acknowledges the issuance of the Regular Certificates and Class R Certificates, in authorized Denominations, in each case registered in the names set forth in such order or as so directed in this Agreement and duly authenticated by the Authenticating Agent, which Certificates, evidence ownership of the entire Trust Fund.

 

Section 2.06 Miscellaneous REMIC Provisions. (a) The Lower-Tier Regular Interests issued hereunder are hereby designated as the “regular interests” in the Lower-Tier REMIC within the meaning of Section 860G(a)(1) of the Code, and the Class LR Certificates are hereby designated as the sole class of “residual interests” in the Lower-Tier REMIC within the meaning of Section 860G(a)(2) of the Code.

 

The Regular Certificates are hereby designated as “regular interests” in the Upper-Tier REMIC within the meaning of Section 860G(a)(1) of the Code, and the Class R Certificates are hereby designated as the sole Class of “residual interests” in the Upper-Tier REMIC within the meaning of Section 860G(a)(2) of the Code.

 

The Closing Date is hereby designated as the “Startup Day” of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of Section 860G(a)(9) of the Code. The “latest possible maturity date” for purposes of Section 860G(a)(l) of the Code for the Lower-Tier Regular Interests and the Regular Certificates is the Rated Final Distribution Date.

 

(b)       None of the Depositor, the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer shall enter into any arrangement by which the Trust Fund will receive a fee or other compensation for services other than as specifically contemplated herein.

 

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ARTICLE III

ADMINISTRATION AND SERVICING
OF THE TRUST FUND

 

Section 3.01 The Master Servicer To Act as Master Servicer; Special Servicer To Act as Special Servicer; Administration of the Whole Loan.(a) The Master Servicer (with respect to the Whole Loan if it is a Performing Loan) and the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan), each as an independent contractor servicer, shall service and administer the Whole Loan on behalf of the Trust Fund and the Trustee (as Trustee for the Certificateholders) and the Companion Loan Holder (as a collective whole as if such Certificateholders and Companion Loan Holder constituted a single lender), in accordance with the Servicing Standard.

 

The Master Servicer’s or Special Servicer’s liability for actions and omissions in its capacity as Master Servicer or Special Servicer, as the case may be, hereunder is limited as provided herein (including, without limitation, pursuant to Section 6.03 hereof). To the extent consistent with the foregoing and subject to any express limitations set forth in this Agreement, the Master Servicer and Special Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Note; provided, however, that nothing herein contained shall be construed as an express or implied guarantee by the Master Servicer or Special Servicer of the collectability of the Whole Loan. Subject only to the Servicing Standard, the Master Servicer and Special Servicer shall have full power and authority, acting alone or through one or more Sub-Servicers (subject to paragraph (c) of this Section 3.01, to the related Sub-Servicing Agreement with each Sub-Servicer and to Section 3.02 of this Agreement), to do or cause to be done any and all things in connection with such servicing and administration that it may deem consistent with the Servicing Standard and, in its reasonable judgment, in the best interests of the Certificateholders and the Companion Loan Holder (as a collective whole as if such Certificateholders and Companion Loan Holder constituted a single lender), including, without limitation, with respect to the Whole Loan to prepare, execute and deliver, on behalf of the Certificateholders and the Companion Loan Holder and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien on the Mortgaged Property and related collateral; (ii) any modifications, waivers, consents or amendments to or with respect to any documents contained in the Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or release or discharge, and all other comparable instruments, with respect to the Whole Loan and the Mortgaged Property. Notwithstanding the foregoing, neither the Master Servicer nor the Special Servicer shall modify, amend, waive or otherwise consent to any change of the terms of the Whole Loan except under the circumstances described in Section 3.03, Section 3.09, Section 3.10, Section 3.24, Section 3.25 and Section 3.26 hereof. The Master Servicer (with respect to the Whole Loan if it is a Performing Loan) and the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan) shall provide to the Borrower reports required to be provided to it pursuant to the Loan Documents. Subject to Section 3.11 of this Agreement, the Trustee shall, upon the receipt of a written request of a Servicing Officer, execute and deliver to the Master Servicer and Special Servicer, as applicable, any powers of attorney (substantially in the form attached hereto as Exhibit Q or such other form as mutually agreed to by the Trustee and the Master Servicer or the Special Servicer, as applicable) and other

 

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documents (including, but not limited to, other powers of attorney) prepared by the Master Servicer and Special Servicer, as applicable, and necessary or appropriate (as certified in such written request) to enable the Master Servicer and Special Servicer, as applicable, to carry out their servicing and administrative duties hereunder. The Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer and Special Servicer, as applicable. Notwithstanding anything contained herein to the contrary, none of the Master Servicer or the Special Servicer shall, 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 Special Servicer’s, as applicable, representative capacity; provided, however, that in those jurisdictions in which the foregoing requirement would not be legally or procedurally permissible, the Master Servicer or the Special Servicer, as applicable, shall provide five (5) Business Days’ prior written notice to the Trustee of the initiation of such action, suit or proceeding (or provide such prior written notice as the Master Servicer or the Special Servicer, as applicable, shall determine in its reasonable judgment exercised in accordance with the Servicing Standard, to be reasonably practicable prior to filing such action, suit or proceeding) (and shall not be required to obtain the Trustee’s written consent or indicate the Master Servicer’s or the 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 registered to do business in any state.

 

(b)       Unless otherwise provided in the Note, Loan Agreement or Co-Lender Agreement, the Master Servicer shall apply any partial Principal Prepayment received on the Whole Loan on a date other than a Due Date to the Stated Principal Balance of the Whole Loan as of the Due Date immediately following the date of receipt of such partial Principal Prepayment; provided that the Master Servicer shall apply any total or partial Principal Prepayment received on the Whole Loan on a date following a Due Date but prior to the close of business on the Business Day prior to the related Servicer Remittance Date to the Stated Principal Balance of the Whole Loan as of the Due Date immediately preceding the date of receipt of such total or partial Principal Prepayment. Unless otherwise provided in the Note, if the Whole Loan is defeased, the Master Servicer shall apply any amounts received on U.S. Treasury obligations pursuant to the terms of the Loan Documents to the Stated Principal Balance of and interest on the Whole Loan as of the Due Date immediately following the receipt of such amounts.

 

(c)       The Master Servicer and the Special Servicer, may enter into Sub-Servicing Agreements with third parties with respect to any of its respective obligations hereunder, provided that (i) any such agreement requires the Sub-Servicer to comply in all material respects with all of the applicable terms and conditions of this Agreement and shall be consistent with the provisions of this Agreement, the terms of the Loan Documents and the Co-Lender Agreement, (ii) if such Sub-Servicer is a Servicing Function Participant, any such agreement provides that (x) the failure of such Sub-Servicer to comply with any of the requirements under Sections 3.27, 3.28 or 3.29 of this Agreement applicable to such Sub-Servicer, including the failure to deliver any reports or certificates at the time such report or certification is required under Sections 3.27, 3.28 or 3.29 of this Agreement and (y) the failure of such Sub-Servicer to comply with any requirements to deliver any items required by Items 1122 and 1123 of Regulation AB under any other trust and servicing agreement relating to any other series of certificates offered by the Depositor shall constitute a termination event by such Sub-Servicer upon the occurrence of which the Master Servicer shall (and the Depositor may)

 

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immediately terminate the related Sub-Servicer under the related Sub-Servicing Agreement, which termination shall be deemed for cause, (iii) no Sub-Servicer retained by the Master Servicer or the Special Servicer, as applicable, shall grant any modification, waiver or amendment to the Whole Loan or foreclose on the Mortgage without the approval of the Master Servicer or the Special Servicer, as applicable, which approval shall be given or withheld in accordance with the procedures set forth in Section 3.09, Section 3.10, Section 3.24, Section 3.25 and Section 3.26 (as applicable), (iv) such agreement shall be consistent with the Servicing Standard and (v) with respect to any Sub-Servicing Agreement entered into after the Closing Date, if such Sub-Servicer is a Servicing Function Participant, such Sub-Servicer, at the time the related Sub-Servicing Agreement is entered into, is not a Prohibited Party. Any such Sub-Servicing Agreement may permit the Sub-Servicer to delegate its duties to agents or Subcontractors so long as the related agreements or arrangements with such agents or Subcontractors are consistent with the provisions of this Section 3.01(c) (including, for the avoidance of doubt, that no such agent or Subcontractor is a Prohibited Party, if such agent or Subcontractor would be a Servicing Function Participant, at the time the related Sub-Servicing Agreement is entered into). Any monies received by a Sub-Servicer pursuant to a Sub-Servicing Agreement (other than sub-servicing fees) shall be deemed to be received by the Master Servicer on the date received by such Sub-Servicer.

 

Any Sub-Servicing Agreement entered into by the Master Servicer or the Special Servicer, as applicable, shall provide that it may be assumed by the Trustee (in its sole discretion) if the Trustee has assumed the duties of the Master Servicer or the Special Servicer, respectively, or any successor Master Servicer or Special Servicer, as applicable, without cost or obligation to the assuming party or the Trust Fund, upon the assumption by such party of the obligations, except to the extent they arose prior to the date of assumption, of the Master Servicer or the Special Servicer, as applicable, pursuant to Section 7.02 (it being understood that any such obligations shall be the obligations of the terminated Master Servicer or Special Servicer, as applicable, only).

 

Any Sub-Servicing Agreement, and any other transactions or services relating to the Whole Loan involving a Sub-Servicer, shall be deemed to be between the Master Servicer or the Special Servicer, as applicable, and such Sub-Servicer alone, and the Trustee, the Certificate Administrator, the Operating Advisor, the Trust Fund, Certificateholders and the Companion Loan Holder shall not be deemed parties thereto and shall have no claims, rights (except as specified below), obligations, duties or liabilities with respect to the Sub-Servicer, except as set forth in Section 3.01(c)(ii) and Section 3.01(d).

 

Notwithstanding the provisions of any Sub-Servicing Agreement and this Section 3.01, in no event shall the Trust Fund, the Trustee, the Certificate Administrator, the Depositor or the Companion Loan Holder bear any termination fee required to be paid to any Sub-Servicer as a result of the termination of any Sub-Servicing Agreement.

 

(d)       If the Trustee or any successor Master Servicer assumes the obligations of the Master Servicer, or if the Trustee or any successor Special Servicer assumes the obligations of the Special Servicer, in each case in accordance with Section 7.02, the Trustee, the successor Master Servicer or such successor Special Servicer, as applicable, to the extent necessary to permit the Trustee, the successor Master Servicer or such successor Special Servicer, as applicable, to carry out the provisions of Section 7.02, shall, without act or deed on the part of

 

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the Trustee, the successor Master Servicer or such successor Special Servicer, as applicable, succeed to all of the rights and obligations of the Master Servicer or the Special Servicer, as applicable, under any Sub-Servicing Agreement entered into by the Master Servicer or the Special Servicer, as applicable, pursuant to Section 3.01(c). In such event, such successor shall be deemed to have assumed all of the Master Servicer’s or the Special Servicer’s interest, as applicable, therein (but not any liabilities or obligations in respect of acts or omissions of the Master Servicer or the Special Servicer, as applicable, prior to such deemed assumption) and to have replaced the Master Servicer or the Special Servicer, as applicable, as a party to such Sub-Servicing Agreement to the same extent as if such Sub-Servicing Agreement had been assigned to such successor, except that the Master Servicer or the Special Servicer, as applicable, shall not thereby be relieved of any liability or obligations under such Sub-Servicing Agreement that accrued prior to the succession of such successor.

 

If the Trustee or any successor Master Servicer or successor Special Servicer, as applicable, assumes the servicing obligations of the Master Servicer or the Special Servicer, as applicable, then upon request of such successor, the Master Servicer or Special Servicer, as applicable, shall at its own expense (except in the event that the Special Servicer is terminated pursuant to Section 3.22, at the expense of the Certificateholders effecting such termination, as applicable) deliver to such successor all documents and records relating to any Sub-Servicing Agreement and the Trust Loan and/or the Companion Loan then being serviced thereunder and an accounting of amounts collected and held by it, if any, and shall otherwise use commercially reasonable efforts to effect the orderly and efficient transfer of any Sub-Servicing Agreement to such successor. The Master Servicer shall not be required to assume the obligations of the Special Servicer and nothing in this paragraph shall imply otherwise.

 

(e)        In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (for purposed of this clause (e), “Applicable Law”), the Master Servicer and the Special Servicer, as the case may be, are required to obtain, verify and record certain information relating to individuals and entities that maintain a business relationship with the Master Servicer or the Special Servicer. Accordingly, each of the parties hereto agrees to provide to the Master Servicer and the Special Servicer, upon its respective request from time to time, such identifying information and documentation as may be available for such party in order to enable the Master Servicer and the Special Servicer to comply with Applicable Law.

 

(f)        The parties hereto acknowledge that the Whole Loan is subject to the terms and conditions of the Co-Lender Agreement. The parties hereto further recognize the rights and obligations of the Companion Loan Holder under the Co-Lender Agreement, including, without limitation with respect to (A) the allocation of collections (and all other amounts received in connection with the Whole Loan) on or in respect of the Whole Loan and (B) the allocation of Default Interest on or in respect of the Whole Loan. In the event of any inconsistency or discrepancy between the provisions, terms or conditions of the Co-Lender Agreement and the provisions, terms or conditions of this Agreement, the Co-Lender Agreement shall govern, and as to any matter on which the Co-Lender Agreement is silent or makes reference to this Agreement, this Agreement shall govern.

 

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Section 3.02 Liability of the Master Servicer and the Special Servicer When Sub-Servicing. Notwithstanding any Sub-Servicing Agreement, any of the provisions of this Agreement relating to agreements or arrangements between the Master Servicer or Special Servicer, as applicable, and any Person acting as Sub-Servicer (or its agents or Subcontractors) or any reference to actions taken through any Person acting as Sub-Servicer or otherwise, the Master Servicer or the Special Servicer, as applicable, shall remain obligated and primarily liable to the Trustee (on behalf of the Certificateholders and the Companion Loan Holder) and the Certificateholders for the servicing and administering of the Whole Loan in accordance with the provisions of this Agreement without diminution of such obligation or liability by virtue of such Sub-Servicing Agreements or arrangements or by virtue of indemnification from the Depositor or any other Person acting as Sub-Servicer (or its agents or Subcontractors) to the same extent and under the same terms and conditions as if the Master Servicer or the Special Servicer, as applicable, alone was servicing and administering the Whole Loan. Each of the Master Servicer and the Special Servicer shall be entitled to enter into an agreement with any Sub-Servicer providing for indemnification of the Master Servicer or the Special Servicer, as applicable, by such Sub-Servicer, and nothing contained in this Agreement shall be deemed to limit or modify such indemnification, but no such agreement for indemnification shall be deemed to limit or modify this Agreement.

 

Section 3.03 Collection of Whole Loan Payments. (a) The Master Servicer (with respect to the Whole Loan if it is a Performing Mortgage Loan) and the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan) shall use reasonable efforts to collect all payments called for under the terms and provisions of the Whole Loan, and shall follow the Servicing Standard with respect to such collection procedures; provided, however, that nothing herein contained shall be construed as an express or implied guarantee by the Master Servicer or the Special Servicer of the collectibility of the Whole Loan. With respect to the Performing Loan, the Master Servicer shall use its reasonable efforts, consistent with the Servicing Standard, to collect income statements and rent rolls from the Borrower as required by the Loan Documents and the terms hereof. The Master Servicer shall provide at least 90 days’ notice (with a copy to the Special Servicer) to the Borrower of Balloon Payments coming due. Consistent with the foregoing, the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) or the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan) may in their discretion waive any late payment charge or Default Interest in connection with any delinquent Monthly Payment or Balloon Payment with respect to the Whole Loan. In addition, the Special Servicer shall be entitled to take such actions with respect to the collection of payments on the Whole Loan as is permitted or required under this Agreement.

 

Section 3.04 Collection of Taxes, Assessments and Similar Items; Escrow Accounts. (a) The Master Servicer shall maintain accurate records with respect to the Mortgaged Property reflecting the status of taxes, assessments and other similar items that is or may become a lien thereon and the status of insurance premiums payable with respect thereto. If the Whole Loan is a Specially Serviced Loan, the Special Servicer shall use its reasonable efforts, consistent with the Servicing Standard, to collect income statements and rent rolls from Borrower as required by the Loan Documents. The Special Servicer, in the case of an REO Loan, and the Master Servicer, in the case of the Whole Loan, shall use reasonable efforts consistent with the Servicing Standard to, from time to time, (i) obtain all bills for the payment of such items (including renewal premiums), and (ii) effect, or, if the Special Servicer, to use

 

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reasonable efforts to cause the Master Servicer to effect, payment of all such bills with respect to the Mortgaged Property prior to the applicable penalty or termination date, in each case employing for such purpose Escrow Payments as allowed under the terms of the Loan Documents. If the Borrower fails to make any such payment on a timely basis or collections from the Borrower are insufficient to pay any such item before the applicable penalty or termination date, the Master Servicer shall advance the amount of any shortfall as a Property Advance unless the Master Servicer determines in accordance with the Servicing Standard that such Advance would be a Nonrecoverable Advance (provided that with respect to advancing insurance premiums or delinquent tax assessments the Master Servicer shall comply with the provisions of Section 3.21(d) of this Agreement). The Master Servicer shall be entitled to reimbursement of Property Advances, with interest thereon at the Advance Rate, that it makes pursuant to this Section 3.04 of this Agreement from amounts received on or in respect of the Whole Loan respecting which such Advance was made or if such Advance has become a Nonrecoverable Advance, to the extent permitted by Section 3.06 of this Agreement. No costs incurred by the Master Servicer in effecting the payment of taxes and assessments on the Mortgaged Property shall, for the purpose of calculating distributions to Certificateholders, be added to the amount owing under the Whole Loan, notwithstanding that the terms of the Whole Loan so permit.

 

(b)       The Master Servicer shall segregate and hold all funds collected and received constituting Escrow Payments separate and apart from any of its own funds and general assets and shall establish and maintain one or more segregated custodial accounts (each, an “Escrow Account”) into which all Escrow Payments shall be deposited within two (2) Business Days after receipt of properly identified funds and maintained in accordance with the requirements of the Whole Loan and in accordance with the Servicing Standard. The Master Servicer shall also deposit into each Escrow Account any amounts representing losses on Permitted Investments to the extent required pursuant to Section 3.07(b) of this Agreement and any Insurance Proceeds or Liquidation Proceeds which are required to be applied to the restoration or repair of the Mortgaged Property pursuant to the Whole Loan. Escrow Accounts shall be Eligible Accounts (except to the extent the Loan Documents require it to be held in an account that is not an Eligible Account); provided, however, that in the event the ratings of the financial institution holding such account are downgraded to a ratings level below that of an Eligible Account (except to the extent the Loan Documents require it to be held in an account that is not an Eligible Account), the Master Servicer shall have 30 Business Days (or such longer time as confirmed by a No Downgrade Confirmation, obtained at the expense of the Master Servicer relating to the Certificates) to transfer such account to an Eligible Account. Escrow Accounts shall be entitled, “KeyBank National Association, as Master Servicer, on behalf of Wells Fargo Bank, National Association, as Trustee, in trust for the benefit of the Holders of COMM 2016-667M Mortgage Trust Commercial Mortgage Pass-Through Certificates and the Borrower and the Companion Loan Holder”. Withdrawals from an Escrow Account may be made by the Master Servicer only:

 

(i)        to effect timely payments of items constituting Escrow Payments for the Mortgage;

 

(ii)       to transfer funds to the Collection Account (or any sub-account thereof) to reimburse the Master Servicer or the Trustee for any Property Advance (with interest

 

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thereon at the Advance Rate) relating to Escrow Payments, but only from amounts received with respect to the Whole Loan which represent late collections of Escrow Payments thereunder;

 

(iii)      for application to the restoration or repair of the Mortgaged Property in accordance with the Whole Loan and the Servicing Standard;

 

(iv)      to clear and terminate such Escrow Account upon the termination of this Agreement or pay-off of the Whole Loan;

 

(v)       to pay from time to time to the Borrower any interest or investment income earned on funds deposited in the Escrow Account if such income is required to be paid to the Borrower under law or by the terms of the Loan Documents, or otherwise to the Master Servicer; or

 

(vi)      to remove any funds deposited in an Escrow Account that were not required to be deposited therein or to refund amounts to Borrower determined to be overages.

 

(c)        The Master Servicer shall, as to the Whole Loan (i) maintain accurate records with respect to the 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 and (ii) use reasonable efforts to obtain, from time to time, all bills for (or otherwise confirm) the payment of such items (including renewal premiums) and, if the Whole Loan requires the Borrower to escrow for such items, shall effect payment thereof prior to the applicable penalty or termination date. For purposes of effecting any such payment for which it is responsible, the Master Servicer shall apply Escrow Payments as allowed under the terms of the Loan Documents (or, if the Whole Loan does not require the Borrower to escrow for the payment of real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the Borrower to comply with the requirement of the Mortgage that the Borrower makes 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 Mortgaged Property for nonpayment of such items). Subject to Section 3.21 of this Agreement, the Master Servicer shall timely make a Property Advance to cover any such item which is not so paid, including any penalties or other charges arising from the Borrower’s failure to timely pay such items.

 

Section 3.05 Collection Account; Distribution Accounts and Interest Reserve Account. (a) The Master Servicer shall establish and maintain a Collection Account, for the benefit of the Certificateholders, the Companion Loan Holder and the Trustee as the Holder of the Lower-Tier Regular Interests. The Collection Account shall be established and maintained as an Eligible Account.

 

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The Master Servicer shall deposit or cause to be deposited in the Collection Account within two Business Days following receipt of properly identified funds of the following payments and collections received or made by or on behalf of it on or with respect to the Whole Loan subsequent to the Cut-off Date:

 

(i)        all payments on account of principal on the Whole Loan, including the principal component of all Unscheduled Payments;

 

(ii)       all payments on account of interest on the Whole Loan (net of the related Servicing Fee Rate), including Default Interest, Prepayment Charges and the interest component of all Unscheduled Payments;

 

(iii)      any amounts required to be deposited pursuant to Section 3.07(b) of this Agreement, in connection with net losses realized on Permitted Investments with respect to funds held in the Collection Account;

 

(iv)      all Net REO Proceeds withdrawn from the related REO Account pursuant to Section 3.15(b) of this Agreement;

 

(v)       any amounts received from the Borrower which represent recoveries of Property Protection Expenses or items for which Administrative Advances were made and are allocable to the Whole Loan, to the extent not permitted to be retained by the Master Servicer as provided herein;

 

(vi)      all Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds received in respect of the Whole Loan or REO Property, other than Liquidation Proceeds that are received in connection with a purchase of the Whole Loan or REO Property that are to be deposited in the Lower Tier Distribution Account pursuant to Section 9.01 of this Agreement, together with any amounts representing recoveries of Nonrecoverable Advances in respect of the Whole Loan;

 

(vii)      Penalty Charges on the Whole Loan to the extent required to offset interest on Advances and Additional Trust Fund Expenses pursuant Section 3.12(d) of this Agreement;

 

(viii)    any amounts required to be deposited by the Master Servicer or the Special Servicer pursuant to Section 3.08(b) of this Agreement in connection with losses resulting from a deductible clause in a blanket or master force-placed policy in respect of the Mortgaged Property;

 

(ix)       any other amounts required by the provisions of this Agreement (including without limitation, with respect to the Companion Loan or any mezzanine indebtedness that may exist on a future date, all amounts received pursuant to the cure and purchase rights or reimbursement obligations set forth in the Co-Lender Agreement and the related mezzanine intercreditor agreement) to be deposited into the Collection Account by the Master Servicer or Special Servicer;

 

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(x)        any Master Servicer Prepayment Interest Shortfall Amounts in respect of the Trust Loan pursuant to Section 3.17(c) of this Agreement; and

 

(xi)       any indemnity payment received from the Trust Loan Seller in connection with its indemnification of the Trust for losses directly related to a Material Breach or Material Document Defect pursuant to Section 2.03(e) of this Agreement.

 

The foregoing requirements for deposits in the Collection Account shall be exclusive, it being understood and agreed that, without limiting the generality of the foregoing, payments in the nature of late payment charges (subject to Section 3.12 and the Co-Lender Agreement), Assumption Fees, Modification Fees, consent fees, loan service transaction fees, extension fees, demand fees, defeasance fees, beneficiary statement charges and similar fees need not be deposited in the Collection Account by the Master Servicer or the Special Servicer, as applicable, and, to the extent permitted by applicable law, the Master Servicer or the Special Servicer, as applicable, in accordance with Section 3.12 hereof, shall be entitled to retain any such charges and fees received with respect to the Trust Loan as additional compensation.

 

In the event that the Master Servicer deposits in the Collection Account any amount not required to be deposited therein, it may at any time withdraw such amount from the Collection Account, any provision herein to the contrary notwithstanding.

 

Upon receipt of any of the amounts described in clauses (i), (ii), (v), (vi), (vii) and (ix) above of this Section 3.05(a) with respect to the Whole Loan if it is a Specially Serviced Loan but is not an REO Loan, the Special Servicer shall remit such amounts within one Business Day after receipt thereof (except, if such amounts are not properly identified, the Special Servicer shall promptly identify such amounts and shall remit such amounts within one Business Day after such identification) to the Master Servicer for deposit into the Collection Account in accordance with the second paragraph of this Section 3.05 of this Agreement, unless the Special Servicer determines, consistent with the Servicing Standard, that a particular item should not be deposited because of a restrictive endorsement or other appropriate reason. Any such amounts received by the Special Servicer with respect to the REO Property shall be deposited by the Special Servicer into the REO Account and remitted to the Master Servicer for deposit into the Collection Account pursuant to Section 3.15(b) of this Agreement. 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.

 

(b)       The Certificate Administrator shall establish and maintain the Lower-Tier Distribution Account in its own name for the benefit of the Trustee, in trust for the benefit of the Certificateholders, the Companion Loan Holder and the Trustee as the Holder of the Lower-Tier Regular Interests. The Lower-Tier Distribution Account shall be established and maintained as an Eligible Account or as a sub-account of an Eligible Account.

 

(c)       With respect to each Distribution Date, the Master Servicer shall deliver to the Certificate Administrator on or before the Servicer Remittance Date Available Funds then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a) of this Agreement. Upon receipt from the Master Servicer of such amounts held in the Collection Account, the Certificate Administrator shall deposit in the Lower-Tier Distribution

 

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Account (A) the amount of Available Funds to be distributed pursuant to Section 4.01 of this Agreement hereof, (B) Prepayment Charges to be distributed pursuant to Section 4.01(d) of this Agreement and (C) in the Interest Reserve Account as part of the Lower-Tier REMIC, the amount of any Withheld Amounts to be deposited pursuant to Section 3.05(e) of this Agreement.

 

(d)       The Certificate Administrator shall establish and maintain the Upper-Tier Distribution Account in its own name for the benefit of the Trustee, in trust for the benefit of the Certificateholders. The Upper-Tier Distribution Account shall be established and maintained as an Eligible Account or a sub-account of an Eligible Account. Promptly on each Distribution Date, the Certificate Administrator shall withdraw or be deemed to withdraw from the Lower-Tier Distribution Account and deposit or be deemed to deposit in the Upper-Tier Distribution Account on or before such date the Lower-Tier Distribution Amount for such Distribution Date to be distributed in respect of the Lower-Tier Regular Interests pursuant to Section 4.01(a) of this Agreement on such date.

 

(e)        The Certificate Administrator shall establish and maintain the Interest Reserve Account in its own name on behalf of the Trustee, in trust for the benefit of the Certificateholders and the Trustee as the holder of the Lower-Tier Regular Interests. The Interest Reserve Account shall be established and maintained as an Eligible Account or as a sub-account of an Eligible Account.

 

(f)        On each Servicer Remittance Date occurring in (i) January of each calendar year that is not a leap year and (ii) February of each calendar year, unless in either case such Servicer Remittance Date is the final Servicer Remittance Date, the Certificate Administrator shall calculate the Withheld Amounts. On each such Servicer Remittance Date, the Certificate Administrator shall withdraw or be deemed to withdraw from the Lower-Tier Distribution Account and deposit or be deemed to deposit in the Interest Reserve Account an amount equal to the aggregate of the Withheld Amounts calculated in accordance with the previous sentence. If the Certificate Administrator shall deposit in the Interest Reserve Account any amount not required to be deposited therein, it may at any time withdraw such amount from the Interest Reserve Account any provision herein to the contrary notwithstanding. On or prior to the Servicer Remittance Date in March of each calendar year (or in February if the final Distribution Date will occur in such month), the Certificate Administrator shall transfer to the Lower-Tier Distribution Account the aggregate of all Withheld Amounts on deposit in the Interest Reserve Account.

 

(g)       Funds in the Collection Account and the REO Account may be invested in Permitted Investments in accordance with the provisions of Section 3.07 of this Agreement. Funds in the Distribution Account and the Interest Reserve Account shall remain uninvested.

 

The Master Servicer shall give written notice to the Depositor, the Trustee, the Certificate Administrator and the Special Servicer of the location and account number of the Collection Account as of the Closing Date and shall notify the Depositor, the Special Servicer, the Certificate Administrator and the Trustee, as applicable, in writing prior to any subsequent change thereof. The Certificate Administrator shall give written notice to the Depositor, the Trustee, the Special Servicer and the Master Servicer of the location and account number of each of the Distribution Accounts and the Interest Reserve Account as of the Closing Date and shall

 

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notify the Depositor, the Trustee, the Special Servicer and the Master Servicer, as applicable, in writing prior to any subsequent change thereof.

 

(h)       Notwithstanding anything to the contrary contained herein, with respect to each Due Date, within one (1) Business Day after each Determination Date, or, from and after the date when the Companion Loan is deposited into a securitization, unless provided otherwise in the Co-Lender Agreement, on the second Business Day before the “servicer remittance date,” as such term or a similar term is defined in the related Other Pooling and Servicing Agreement (as long as such date is at least two (2) Business Days after receipt of properly identified funds), the Master Servicer shall remit, from amounts on deposit in the Collection Account, to the Companion Loan Holder by wire transfer in immediately available funds to the account of such Companion Loan Holder or an agent therefor appearing on the Companion Loan Holder Register on the related date such amounts as are required to be remitted (or, if no such account so appears or information relating thereto is not provided at least five (5) Business Days prior to the date such amounts are required to be remitted, by check sent by first class mail to the address of such Companion Loan Holder or its agent appearing on the Companion Loan Holder Register) the applicable Remittance Amount allocable to such Companion Loan Holder.

 

Section 3.06 Permitted Withdrawals from the Collection Account and the Distribution Accounts; Trust Ledger. (a) The Master Servicer shall maintain a separate Trust Ledger with respect to the Whole Loan on which it shall make ledger entries as to amounts deposited (or credited) or withdrawn (or debited) with respect thereto. On each Servicer Remittance Date (or such other date as specified below or on which funds are available for such purpose as specified below), with respect to the Whole Loan, the Master Servicer shall make withdrawals from amounts allocated thereto in the Collection Account (and may debit the Trust Ledger and any related sub-ledger)) for the purposes listed below in accordance with the allocation priorities in the Co-Lender Agreement (the order set forth below not constituting an order of priority for such withdrawals):

 

(i)            on or before 3:00 p.m. (New York City time) on each Servicer Remittance Date, to remit to the Certificate Administrator the amounts to be deposited into the Lower-Tier Distribution Account (including without limitation the aggregate of the Available Funds and Prepayment Charges) which the Certificate Administrator shall then deposit into the Upper-Tier Distribution Account and the Interest Reserve Account, pursuant to Section 3.05(d) and Section 3.05(c) of this Agreement, respectively;

 

(ii)           to pay (A) itself, unpaid Servicing Fees (or, with respect to any Excess Servicing Fee Rights, to pay any Excess Servicing Fees to the holder of such Excess Servicing Fee Rights pursuant to Section 3.12(a) of this Agreement); the Operating Advisor, unpaid Operating Advisor Fees; and the Special Servicer, unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in respect of the Whole Loan, Specially Serviced Loan or REO Loan, as applicable, the Master Servicer’s, Operating Advisor’s or Special Servicer’s, as applicable, rights to payment of Servicing Fees, Operating Advisor Fees, and Special Servicing Fees, Liquidation Fees and Workout Fees pursuant to this clause (ii)(A) with respect to the Whole Loan, Specially Serviced Loan or REO Loan, as applicable, being limited to amounts received on or in respect of the Whole Loan, Specially Serviced Loan or REO Loan, as applicable (whether in the form of payments, Liquidation Proceeds, Insurance Proceeds or Condemnation Proceeds), that

 

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are allocable as recovery of interest thereon, (B) the Special Servicer, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in respect of a Specially Serviced Loan or an REO Loan, as applicable, remaining unpaid out of general collections on the Whole Loan, Specially Serviced Loan and REO Property, and (C) the Operating Advisor, any unpaid Operating Advisor Consulting Fees (but only to the extent such Operating Advisor Consulting Fees were received from the Borrower);

 

(iii)          to reimburse itself or the Trustee, as applicable (in reverse of such order with respect to the Trust Loan), for unreimbursed P&I Advances with respect to the Trust Loan (other than Nonrecoverable Advances, which are reimbursable pursuant to clause (v) below) and to reimburse each related Companion Loan Service Provider for unreimbursed Companion Loan P&I Advances with respect to the Companion Loan (other than such advance which have been determined to be nonrecoverable, which are reimbursable pursuant to clause (v) below), the Master Servicer’s, the Trustee’s and the applicable Serviced Companion Loan Service Provider’s right to reimbursement pursuant to this clause (iii) being limited to amounts received which represent Late Collections for the Trust Loan or the Companion Loan, as applicable (as allocated thereto pursuant to the Co-Lender Agreement), during the applicable period;

 

(iv)          to reimburse itself or the Trustee, as applicable (in reverse of such order with respect to the Whole Loan or REO Property), for unreimbursed Property Advances and Administrative Advances, the Master Servicer’s or the Trustee’s respective rights to receive payment pursuant to this clause (iv) with respect to the Whole Loan or REO Property being limited to, as applicable, payments received from the Borrower which represent reimbursements of such Property Advances or Administrative Advances, as applicable, Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds and REO Proceeds with respect to the Whole Loan or REO Property;

 

(v)           (A) first, to reimburse itself and the Trustee, as applicable (in reverse of such order with respect to the Whole Loan or REO Property), with respect to Nonrecoverable Property Advances and second, to reimburse itself and the Trustee, as applicable (in reverse of such order with respect to the Whole Loan or REO Property) and each related Companion Loan Service Provider on a pro rata and pari passu basis (based on the total outstanding principal balance of the Trust Loan and the Companion Loan, respectively) with respect to Nonrecoverable P&I Advances and Companion Loan Advances which have been determined to be nonrecoverable, first, out of Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds and REO Proceeds received on the Whole Loan and REO Property, second, out of the principal portion of general collections on the Whole Loan and REO Property, and then, to the extent the principal portion of general collections is insufficient and with respect to such deficiency only, subject to any election at its sole discretion (or at the Trustee’s sole discretion for the reimbursement of the Trustee) to defer reimbursement thereof pursuant to this Section 3.06(a) of this Agreement, out of other collections on the Whole Loan and REO Property; provided that, in the case of Nonrecoverable Property Advances, only to the extent that amounts on deposit in the Collection Account are insufficient for reimbursement therefor after taking into account any allocation set forth in the Co-Lender Agreement, the Master Servicer shall use commercially reasonable efforts to exercise on behalf of the Trust the

 

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rights of the Trust under the Co-Lender Agreement to obtain reimbursement for a pro rata portion of such amount allocable to the Companion Loan from the Companion Loan Holder and (B) to pay itself or the Special Servicer out of general collections on the Whole Loan and REO Property, with respect to the Whole Loan or REO Property any related earned Servicing Fee, Special Servicing Fee, Liquidation Fee or Workout Fee, as applicable, that remained unpaid in accordance with clause (ii) above following a Final Recovery Determination made with respect to the Whole Loan or REO Property and the deposit into the Collection Account of all amounts received in connection therewith;

 

(vi)         at such time as it reimburses itself and the Trustee, as applicable (in reverse of such order with respect to the Whole Loan or REO Property), for (A) any unreimbursed P&I Advance made with respect to the Trust Loan or any unreimbursed Companion Loan P&I Advances made with respect to the Companion Loan pursuant to clause (iii) above, to pay itself the Trustee or the applicable Companion Loan Service Provider, as applicable, any Advance Interest Amounts accrued and payable thereon, (B) any unreimbursed Property Advances made with respect to the Whole Loan or REO Property or Administrative Advances made with respect to the Trust Loan or REO Property pursuant to clause (iv) above, to pay itself or the Trustee, as the case may be, any Advance Interest Amounts accrued and payable thereon or (C) any Nonrecoverable Advances (or nonrecoverable Companion Loan Advances) made with respect to the Trust Loan or Whole Loan, as applicable, or REO Property pursuant to clause (v) above, to pay itself, the Trustee or the applicable Companion Loan Service Provider, as the case may be, any Advance Interest Amounts (or interest on Companion Loan Advances) accrued and payable thereon, in each case first from Penalty Charges as provided in Section 3.12(d) and then from general collections; provided that, in the case of (A) above, such party’s right to reimbursement pursuant to this clause (vii) shall be limited to amounts on deposit in the Collection Account allocable to the Trust Loan or the Companion Loan for which the advance was made;

 

(vii)         to reimburse itself, the Special Servicer, the Custodian, the Certificate Administrator or the Trustee, as the case may be, for any unreimbursed expenses reasonably incurred by such Person in respect of any Breach or Defect giving rise to a repurchase obligation of the Trust Loan Seller under Section 6 of the Trust Loan Purchase Agreement, including, without limitation, any expenses arising out of the enforcement of the repurchase obligation, together with interest thereon at the Advance Rate, each such Person’s right to reimbursement pursuant to this clause (vii) with respect to the Trust Loan subject to the following: (a) if the Repurchase Price is paid for the Trust Loan, then such Person’s right to reimbursement shall be limited to that portion of the Repurchase Price that represents such expense in accordance with clause (e) of the definition of Repurchase Price, or (b) if no Repurchase Price or an indemnity payment pursuant to Section 2.03(e) is paid and proceedings are instituted to enforce the Trust Loan Seller’s payment or performance pursuant to the Trust Loan Purchase Agreement, then such Person shall be entitled to reimbursement from the Trust following the adjudication of such proceedings in favor of the Trust Loan Seller or settlement of the Breach or Defect claim with respect to collections relating to the Trust Loan;

 

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(viii)        to pay itself all Prepayment Interest Excesses on the Whole Loan (if and to the extent any such Prepayment Interest Excess exceeds the amount of any Master Servicer Prepayment Interest Shortfalls calculated pursuant to Section 3.17(c) of this Agreement);

 

(ix)          (A) to pay itself, as additional Servicing Compensation in accordance with Section 3.12(a) of this Agreement, (1) interest and investment income earned in respect of amounts relating to the Trust Fund held in the Collection Account as provided in Section 3.12(b) of this Agreement (but only to the extent of the net investment earnings with respect to such Collection Account for any period from any Distribution Date to the immediately succeeding Servicer Remittance Date) and (2) Penalty Charges on the Whole Loan so long as it is not a Specially Serviced Loan or REO Loan, but only to the extent collected from the Borrower and only to the extent that all amounts then due and payable with respect to the Whole Loan have been paid and are not needed to pay interest on Advances or Companion Loan Advances in accordance with Section 3.12 and/or pay or reimburse the Trust for Additional Trust Fund Expenses incurred with respect to the Whole Loan during or prior to the related Collection Period (including Special Servicing Fees, Workout Fees or Liquidation Fees); and (B) to pay the Special Servicer, as additional servicing compensation in accordance with Section 3.12(c) of this Agreement, Penalty Charges on the Whole Loan so long as it is a Specially Serviced Loan or REO Loan, but only to the extent collected from the Borrower and only to the extent that all amounts then due and payable with respect to the Specially Serviced Loan have been paid and are not needed to pay interest on Advances or Additional Trust Fund Expenses (including Special Servicing Fees, Workout Fees or Liquidation Fees), all in accordance with Section 3.12;

 

(x)           to pay itself, the Special Servicer, the Operating Advisor, the Depositor or any of their respective directors, officers, members, managers, employees and agents, as the case may be, any amounts payable to any such Person pursuant to Section 6.03(a) of this Agreement;

 

(xi)          to pay for the cost of the Opinions of Counsel contemplated by Sections 3.10(d), 3.10(e), 3.15(a), 3.15(b) and 10.08 of this Agreement;

 

(xii)         to pay out of general collections on the Whole Loan and REO Property any and all federal, state and local taxes imposed on the Upper-Tier REMIC, the Lower-Tier REMIC or any of their assets or transactions, together with all incidental costs and expenses, to the extent that none of the Master Servicer, the Special Servicer or the Trustee is liable therefor pursuant to this Agreement;

 

(xiii)        to reimburse the Trustee, the Custodian or the Certificate Administrator out of general collections on the Whole Loan and REO Property for expenses incurred by and reimbursable to it by the Trust Fund;

 

(xiv)        to pay any Person permitted to purchase the Trust Loan under Section 3.16 of this Agreement with respect to the Trust Loan, if any, previously purchased by such Person pursuant to this Agreement, all amounts received thereon subsequent to the date of purchase relating to periods after the date of purchase;

 

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(xv)         to pay to itself, the Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Operating Advisor or the Depositor, as the case may be, any amount specifically required to be paid to such Person at the expense of the Trust Fund under any provision of this Agreement to which reference is not made in any other clause of this Section 3.06(a) of this Agreement, it being acknowledged that this clause (xv) shall not be construed to modify any limitation or requirement otherwise set forth in this Agreement as to the time at which any Person is entitled to payment or reimbursement of any amount or as to the funds from which any such payment or reimbursement is permitted to be made;

 

(xvi)        to withdraw from the Collection Account any sums deposited therein in error and pay such sums to the Persons entitled thereto;

 

(xvii)       to pay from time to time to itself in accordance with Section 3.07(b) of this Agreement any interest or investment income earned on funds deposited in the Collection Account;

 

(xviii)      [Reserved];

 

(xix)        to pay itself, the Special Servicer or the Trust Loan Seller, as the case may be, with respect to the Trust Loan, if any, previously purchased by such Person pursuant to or as contemplated by this Agreement, all amounts received on the Trust Loan subsequent to the date of purchase;

 

(xx)         to pay to the Certificate Administrator, the Trustee, the Custodian or any of their directors, officers, employees, representatives and agents, as the case may be, any amounts payable or reimbursable to any such Person pursuant to Section 8.05(d) of this Agreement;

 

(xxi)        pursuant to the CREFC® License Agreement, to pay the CREFC® License Fee to CREFC® on a monthly basis;

 

(xxii)       to clear and terminate the Collection Account at the termination of this Agreement pursuant to Section 9.01 of this Agreement ; and

 

(xxiii)      to make remittances each month in an aggregate amount of immediately available funds equal to the Remittance Amount to the Companion Loan Holder in accordance with Section 3.05(h) and in accordance with the Co-Lender Agreement, including amounts to be remitted to the Companion Loan Holder or the Companion Loan Servicer Providers under clauses (iii), (v) and (vi); provided that Liquidation Proceeds relating to the repurchase of the Companion Loan by the related seller thereof shall be remitted solely to the holder of the Companion Loan and Liquidation Proceeds relating to the repurchase of the Trust Loan by the Trust Loan Seller shall be remitted solely to the Collection Account.

 

For the avoidance of doubt, and notwithstanding the foregoing provisions of this Section 3.06(a), any such amounts payable from the Collection Account to the Special Servicer, the Certificate Administrator, the Trustee or to itself for which the Master Servicer (or the

 

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Trustee) is required to advance as an Administrative Advance shall be paid from Administrative Advances therefor deposited into the Collection Account (or deemed deposited into the Collection Account if such payment is advanced by the Master Servicer (or the Trustee) directly to the party entitled to such payment).

 

Upon written request, the Master Servicer shall provide to the Certificate Administrator such records and any other information in the possession of the Master Servicer to enable the Certificate Administrator to determine the amounts attributable to the Lower-Tier REMIC.

 

The Master Servicer shall pay to the Trustee, the Certificate Administrator, the Operating Advisor or the Special Servicer from the Collection Account amounts permitted to be paid to such person therefrom, promptly upon receipt of a certificate of a Responsible Officer of the Trustee, a Responsible Officer of the Certificate Administrator a Responsible Officer of the Operating Advisor or a Servicing Officer of the Special Servicer, as applicable, describing the item and amount to which such Person is entitled (unless such payment to the Trustee, the Certificate Administrator, the Operating Advisor or the Special Servicer, as the case may be, is specifically required pursuant to this Agreement and the timing and the amount of payment is specified in, or calculable pursuant to, this Agreement, in which case a certificate is not required). The Master Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein.

 

The Trustee, the Certificate Administrator, the Custodian, the Special Servicer, the Master Servicer, the Operating Advisor and CREFC® shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Compensation (including investment income), Trustee/Certificate Administrator Fee, Special Servicing Compensation (including investment income), Operating Advisor Fees, Operating Advisor Consulting Fees (but only to the extent such Operating Advisor Consulting Fees are actually received from the Borrower), the CREFC® License Fee, Advances, Advance Interest Amounts (for the Master Servicer or the Trustee), their respective indemnification payments (if any) pursuant to Section 6.03, Section 8.05 or Section 10.02 of this Agreement (for each of such Persons other than CREFC®), their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit in the Collection Account pursuant to this Agreement. For the avoidance of doubt, any fees or expenses (including legal fees) for which a party is to be indemnified pursuant to Section 6.03 herein may be submitted directly to the Trust Fund to be paid from amounts on deposit in the Collection Account. In addition, the Certificate Administrator, the Trustee, the Special Servicer, the Master Servicer and the Operating Advisor shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of any federal, state or local taxes imposed on either Trust REMIC.

 

Upon the determination that a previously made Advance is a Nonrecoverable Advance, to the extent that the reimbursement thereof would exceed the full amount of the principal portion of general collections on the Whole Loan deposited in the Collection Account and available for distribution on the next Distribution Date, the Master Servicer or the Trustee, each at its own option and in its sole discretion, as applicable, instead of obtaining reimbursement for the remaining amount of such Nonrecoverable Advance pursuant to Section

 

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3.06(a) or Section 3.06(b) of this Agreement immediately, may elect to refrain from obtaining such reimbursement for such portion of the Nonrecoverable Advance during the Collection Period ending on the then-current Determination Date for successive one-month periods for a total period not to exceed 12 months. If the Master Servicer or the Trustee makes such an election at its sole option and in its sole discretion to defer reimbursement with respect to all or a portion of a Nonrecoverable Advance (together with interest thereon), then such Nonrecoverable Advance (together with interest thereon) or portion thereof shall continue to be fully reimbursable in the subsequent Collection Period (subject, again, to the same sole discretion to elect to defer; it is acknowledged that, in such a subsequent period, such Nonrecoverable Advance shall again be payable first from principal collections as described above prior to payment from other collections). In connection with a potential election by the Master Servicer or the Trustee to refrain from the reimbursement of a particular Nonrecoverable Advance or portion thereof during the one-month Collection Period ending on the related Determination Date for any Distribution Date, the Master Servicer or the Trustee shall further be authorized (in its sole discretion) to wait for principal collections on the Trust Loan and the Companion Loan to be received before making its determination of whether to refrain from the reimbursement of a particular Nonrecoverable Advance (or portion thereof) until the end of such Collection Period; provided, however, the Master Servicer or the Trustee shall give notice of its election to the 17g-5 Information Provider (who shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement), at least 15 days prior to any reimbursement to it of Nonrecoverable Advances from amounts in the Collection Account allocable to interest on the Whole Loan unless (1) the Master Servicer or the Trustee determines in its sole discretion that waiting 15 days after such a notice could jeopardize its ability to recover Nonrecoverable Advances, (2) changed circumstances or new or different information becomes known to the Master Servicer or the Trustee that could affect or cause a determination of whether any Advance is a Nonrecoverable Advance, whether to defer reimbursement of a Nonrecoverable Advance or the determination in clause (1) above, or (3) the Master Servicer or the Trustee has not timely received from the Certificate Administrator information requested by the Master Servicer or the Trustee to consider in determining whether to defer reimbursement of a Nonrecoverable Advance; provided that, if clause (1), (2) or (3) apply, the Master Servicer or the Trustee shall give notice of an anticipated reimbursement to it of Nonrecoverable Advances from amounts in the Collection Account allocable to interest on the Whole Loan as soon as reasonably practicable in such circumstances to the 17g-5 Information Provider (who shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement). Neither the Master Servicer nor the Trustee shall have any liability for any loss, liability or expense resulting from any notice provided to each Rating Agency contemplated by the immediately preceding sentence.

 

The foregoing shall not, however, be construed to limit any liability that may otherwise be imposed on such Person for any failure by such Person to comply with the conditions to making such an election under this Section 3.06(a) or to comply with the terms of this Section 3.06(a) and the other provisions of this Agreement that apply once such an election, if any, has been made. If the Master Servicer or the Trustee, as applicable, determines, in its sole discretion, that it should recover the Nonrecoverable Advances without deferral as described above, then the Master Servicer or the Trustee, as applicable, shall be entitled to immediate reimbursement of Nonrecoverable Advances with interest thereon at the Advance Rate from all amounts in the Collection Account for such Distribution Date. Any such election by any such

 

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party to refrain from reimbursing itself or obtaining reimbursement for any Nonrecoverable Advance or portion thereof with respect to any one or more Collection Periods shall not limit the accrual of interest at the Advance Rate on such Nonrecoverable Advance for the period prior to the actual reimbursement of such Nonrecoverable Advance. The Master Servicer’s or the Trustee’s, as applicable, election to defer reimbursement of such Nonrecoverable Advances as set forth above is an accommodation to the Certificateholders and the Companion Loan Holder and shall not be construed as an obligation on the part of the Master Servicer or the Trustee, as applicable, or a right of the Certificateholders or the Companion Loan Holder. Nothing herein shall be deemed to create in the Certificateholders or the Companion Loan Holder a right to prior payment of distributions over the Master Servicer’s or the Trustee’s, as applicable, right to reimbursement for Advances (deferred or otherwise). In all events, the decision to defer reimbursement or to seek immediate reimbursement of Nonrecoverable Advances shall be deemed to be (a) in accordance with the Servicing Standard with respect to the Master Servicer and (b) in accordance with good faith business judgment, with respect to the Trustee, and in each case, neither the Master Servicer, the Trustee nor the other parties to this Agreement shall have any liability to one another or to any of the Certificateholders or the Companion Loan Holder for any such election that such party makes as contemplated by this Section 3.06(a) or for any losses, damages or other adverse economic or other effects that may arise from such an election.

 

None of the Master Servicer, the Special Servicer or the Trustee shall be permitted to reverse any other Person’s determination that an Advance is a Nonrecoverable Advance.

 

If the Master Servicer or the Trustee, as applicable, is reimbursed out of general collections for any unreimbursed Advances that are determined to be Nonrecoverable Advances (together with any interest accrued and payable thereon at the Advance Rate), then (for purposes of calculating distributions on the Certificates) such reimbursement and payment of interest shall be deemed to have been made: first, out of the Principal Distribution Amount, which, but for its application to reimburse a Nonrecoverable Advance and/or to pay interest thereon at the Advance Rate, would be included in Available Funds for any subsequent Distribution Date and, second, out of other amounts which, but for their application to reimburse a Nonrecoverable Advance and/or to pay interest thereon, would be included in Available Funds for any subsequent Distribution Date.

 

(b)       Notwithstanding anything to the contrary contained herein, with respect to the Companion Loan, the Master Servicer shall withdraw from the Collection Account and remit to the Companion Loan Holder, within one (1) Business Day after the Determination Date, any amounts that represent Late Collections or Principal Prepayments on the Companion Loan or any successor REO Loan with respect thereto, that are received by the Master Servicer on the related Due Date therefor in any calendar month (exclusive of any portion of such amount payable or reimbursable to any third party in accordance with the Co-Lender Agreement or this Agreement), unless such amount would otherwise be included in the scheduled monthly remittance to the holder of such Companion Loan for such month.

 

If the Master Servicer fails, as of 5:00 p.m. (New York City time) on any Servicer Remittance Date or any other date a remittance is required to be made, to remit to the Certificate Administrator (in respect of the Trust Loan) or the Companion Loan Holder (in respect of the Companion Loan) any amounts required to be so remitted hereunder by such date (including any

 

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P&I Advance pursuant to Section 4.07 and any Excess Liquidation Proceeds allocable to the Companion Loan pursuant to Section 4.01(e)), the Master Servicer shall pay to the Certificate Administrator (in respect of the Trust Loan) or the Companion Loan Holder (in respect of the Companion Loan), for the account of the Certificate Administrator (in respect of the Trust Loan) or the Companion Loan Holder (in respect of the Companion Loan), interest, calculated at the Prime Rate, on such amount(s) not timely remitted, from the time such payment was required to be made (without regard to any grace period) until (but not including) the date such late payment is received by the Certificate Administrator or the Companion Loan Holder, as applicable. Any such interest shall not be an Additional Trust Fund Expense.

 

(c)        On each Servicer Remittance Date, all net income and gain realized from investment of funds to which the Master Servicer or the Special Servicer is entitled pursuant to Section 3.07(b) of this Agreement shall be subject to withdrawal by the Master Servicer or the Special Servicer, as applicable.

 

(d)       If amounts required to pay the expenses allocable to the Companion Loan exceed amounts on deposit in the Collection Account and the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, shall have sought reimbursement from the Trust Fund with respect to such expenses allocable to the Companion Loan, the Master Servicer or Special Servicer, as applicable, shall seek (on behalf of the Trust Fund, subject to the Co-Lender Agreement) payment or reimbursement for the pro rata portion of such expenses allocable to the Companion Loan from the Companion Loan Holder or, if such Companion Loan has been deposited into a securitization, out of general collections in the collection account established pursuant to the related Other Pooling and Servicing Agreement.

 

(e)       [Reserved].

 

(f)        The Certificate Administrator, may, from time to time, make withdrawals from the Lower-Tier Distribution Account for any of the following purposes (the order set forth below shall not indicate any order of priority), in each case to the extent not previously paid from the Collection Account:

 

(i)        to make deposits of the Lower-Tier Distribution Amount and the amount of any Prepayment Charges distributable pursuant to Section 4.01(a) of this Agreement in the Upper-Tier Distribution Account, and to make distributions on the Class LR Certificates pursuant to Section 4.01(a) of this Agreement;

 

(ii)       to pay itself, the Trustee and the Custodian respective portions of any accrued but unpaid Trustee/Certificate Administrator Fee;

 

(iii)      [Reserved];

 

(iv)      to pay to itself, the Trustee, the Custodian or any of their directors, officers, employees, representatives and agents, as the case may be, any amounts payable or reimbursable to any such Person pursuant to Section 8.05(c) and Section 8.05(d) of this Agreement;

 

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(v)       to recoup any amounts deposited in the Lower-Tier Distribution Account in error; and

 

(vi)      to clear and terminate the Lower-Tier Distribution Account at the termination of this Agreement pursuant to Section 9.01 of this Agreement.

 

(g)       The Certificate Administrator, may make withdrawals from the Upper-Tier Distribution Account for any of the following purposes:

 

(i)        to make distributions to Certificateholders (other than Holders of the Class LR Certificates) on each Distribution Date pursuant to Section 4.01 or 9.01 of this Agreement, as applicable;

 

(ii)       to recoup any amounts deposited in the Upper-Tier Distribution Account in error; and

 

(iii)      to clear and terminate the Upper-Tier Distribution Account at the termination of this Agreement pursuant to Section 9.01 of this Agreement.

 

Section 3.07 Investment of Funds in the Collection Account, the REO Account, the Lock-Box Accounts, the Cash Collateral Accounts and the Reserve Accounts. (a) The Master Servicer (with respect to the Collection Account and the Borrower Accounts (as defined below and subject to the second succeeding sentence)) and the Special Servicer (with respect to any REO Account) may direct any depository institution maintaining the Collection Account, the Borrower Accounts and the REO Account (each such account, for purposes of this Section 3.07, an “Investment Account”), to invest the funds in such Investment Account maintained by it in one or more Permitted Investments that bear interest or are sold at a discount, and that mature, unless payable on demand, no later than the Business Day preceding the date on which such funds are required to be withdrawn from such Investment Account pursuant to this Agreement. Any investment of funds on deposit in an Investment Account by the Master Servicer or the Special Servicer shall be documented in writing and shall provide evidence that such investment is a Permitted Investment which matures at or prior to the time required hereby or is payable on demand. In the case of any Escrow Account, Lock-Box Account, Cash Collateral Account or Reserve Account (the “Borrower Accounts”), the Master Servicer shall act upon the written request of the Borrower or Manager to the extent that the Master Servicer is required to do so under the terms of the Loan Documents, provided that in the absence of appropriate written instructions from the Borrower or Manager meeting the requirements of this Section 3.07, the Master Servicer shall have no obligation to, but will be entitled to, direct the investment of funds in such accounts in Permitted Investments. All such Permitted Investments shall be held to maturity, unless payable on demand. Any investment of funds in an Investment Account shall be made in the name of the Trustee (in its capacity as such) or in the name of a nominee of the Trustee. Neither the Certificate Administrator nor the Trustee shall have any responsibility or liability with respect to the investment directions of the Master Servicer, the Special Servicer, the Borrower or Manager or any losses resulting therefrom, whether from Permitted Investments or otherwise. The Master Servicer shall have no responsibility or liability with respect to the investment directions of the Special Servicer, the Certificate Administrator, the Trustee, the Borrower or Manager or any losses resulting therefrom, whether from Permitted Investments or otherwise. The Special Servicer shall have no responsibility or liability with respect to the

 

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investment directions of the Master Servicer, the Certificate Administrator, the Trustee, the Borrower or Manager or any losses resulting therefrom, whether from Permitted Investments or otherwise. In the event amounts on deposit in an Investment Account are at any time invested in a Permitted Investment payable on demand, the Master Servicer (or the Special Servicer) shall:

 

(x)        consistent with any notice required to be given thereunder, demand that payment thereon be made on the last day such Permitted Investment may otherwise mature hereunder in an amount equal to the lesser of (1) all amounts then payable thereunder and (2) the amount required to be withdrawn on such date; and

 

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

 

(b)       All income and gain realized from investment of funds deposited in any Investment Account shall be for the benefit of the Master Servicer (except with respect to the investment of funds deposited in (i) the Borrower Accounts, which shall be for the benefit of the Borrower to the extent required under the Loan Documents or applicable law or (ii) the REO Account, which shall be for the benefit of the Special Servicer) and, if held in the Collection Account or REO Account shall be subject to withdrawal by the Master Servicer or the Special Servicer, as applicable, in accordance with Section 3.06 or Section 3.15(b) of this Agreement, as applicable. The Master Servicer, or with respect to the REO Account, the Special Servicer, shall deposit from its own funds into the Collection Account or any REO Account, as applicable, the amount of any loss incurred in respect of any such Permitted Investment immediately upon realization of such loss; provided, however, that the Master Servicer or the Special Servicer, as applicable, may reduce the amount of such payment to the extent it forgoes any investment income in such Investment Account otherwise payable to it. The Master Servicer shall also deposit from its own funds in the Borrower Account immediately upon realization of such loss the amount of any loss incurred in respect of Permitted Investments, except to the extent that amounts are invested at the direction of or for the benefit of the Borrower under the terms of the Loan Documents or applicable law; provided that neither the Master Servicer nor the Special Servicer shall be required to deposit any loss on an investment of funds in an Investment Account if such loss is incurred solely as a result of the insolvency of the federal or state chartered depository institution or trust company that holds such Investment Account, so long as such depository institution or trust company has satisfied the qualifications set forth in the definition of Eligible Account both (x) at the time the investment was made and (y) 30 days prior to such insolvency.

 

(c)        Except as otherwise expressly provided in this Agreement, if any default occurs in the making of a payment due under any Permitted Investment, or if a default occurs in any other performance required under any Permitted Investment, in either case as a result of an action or inaction of the Master Servicer or the Special Servicer, as applicable, the Trustee may, and upon the request of Holders of Certificates entitled to a majority of the Voting Rights allocated to any Class shall, take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate proceedings. In the event the Trustee takes any such action, (i) the Master Servicer, if such Permitted Investment was for the benefit of the Master Servicer or (ii) the Special Servicer, if such Permitted Investment was

 

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for the benefit of the Special Servicer, shall pay or reimburse the Trustee for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Trustee in connection therewith.

 

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

 

Section 3.08 Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a) Unless the Whole Loan is an REO Loan, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the Borrower to maintain the following insurance coverage (including identifying the extent to which Borrower is maintaining insurance coverage and, if the Borrower does not so maintain such coverage, the Master Servicer will itself cause to be maintained with Qualified Insurers) for the Mortgaged Property: (x) except where the Loan Documents permit the Borrower to rely on self-insurance provided by a tenant, a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing the Whole Loan or (ii) the Stated Principal Balance of the Whole Loan, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including, but not limited to, coverage for acts of terrorism) that is required, subject to applicable law, under the Loan Documents; provided that:

 

(i)        the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on the Mortgaged Property unless the Trustee has an insurable interest and such insurance policy (x) was in effect at the time of the origination of the Whole Loan or (y) was required by the Loan Documents and is available at commercially reasonable rates, provided that the Master Servicer shall require the Borrower to maintain such insurance in the amount, in the case of clause (x), maintained at origination, and in the case of clause (y), required by the Whole Loan to the extent such amounts are available at commercially reasonable rates and to the extent the Trustee has an insurable interest;

 

(ii)       if and to the extent that the Loan Document grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the Borrower is to obtain the requisite insurance coverage, the Master Servicer shall (to the extent consistent with the Servicing Standard) require the Borrower to obtain the requisite insurance coverage from Qualified Insurers;

 

(iii)      the Master Servicer shall have no obligation beyond using its efforts consistent with the Servicing Standard to cause the Borrower to maintain the insurance required to be maintained under the Loan Documents; provided, however, that this clause shall not limit the Master Servicer’s obligation to obtain and maintain a force-placed insurance policy, as provided herein;

 

(iv)      except as provided below (including under clause (vi) below), in no event shall the Master Servicer be required to cause the Borrower to maintain, or itself obtain,

 

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insurance coverage to the extent that the failure of the Borrower to maintain insurance coverage is an Acceptable Insurance Default (as determined by the Special Servicer);

 

(v)       to the extent that the Master Servicer itself is required to maintain insurance that the Borrower does not maintain, the Master Servicer will not be required to maintain insurance other than what is available to the Master Servicer on a force-placed basis at commercially reasonable rates, and only to the extent the Trustee as lender has an insurable interest thereon; and

 

(vi)      any explicit terrorism insurance requirements contained in the Loan Documents shall be enforced by the Master Servicer in accordance with the Servicing Standard, unless the Special Servicer has consented to a waiver (including a waiver to permit the Master Servicer to accept insurance that does not comply with specific requirements contained in the Loan Documents) in writing of that provision in accordance with the Servicing Standard; provided that the Special Servicer shall promptly notify the Master Servicer in writing of such waiver.

 

The Master Servicer shall notify the Special Servicer, the Certificate Administrator and the Trustee if the Master Servicer determines in accordance with the Servicing Standard that the Borrower has failed to maintain insurance required under the Loan Documents and such failure materially and adversely affects the interests of the Certificateholders or if the Borrower has notified the Master Servicer in writing that the Borrower does not intend to maintain such insurance and that the Master Servicer has determined in accordance with the Servicing Standard that such failure materially and adversely affects the interests of the Certificateholders.

 

Subject to Section 3.15(b) of this Agreement, if the Mortgaged Property is an REO Property, and only if and to the extent the Trustee has an insurable interest, the Special Servicer shall use efforts, consistent with the Servicing Standard, to maintain (subject to the right of the Special Servicer to direct the Master Servicer to make a Property Advance for the costs associated with coverage that the Special Servicer determines to maintain, in which case the Master Servicer shall make such Property Advance) with Qualified Insurers to the extent reasonably available at commercially reasonable rates and to the extent the Trustee has an insurable interest, (a) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of the full replacement value of the Mortgaged Property or the Stated Principal Balance of the Whole Loan or the REO Loan, as applicable (or such greater amount of coverage required by the Loan Documents (unless such amount is not available)), but, in any event, in an amount sufficient to avoid the application of any co-insurance clause, (b) a comprehensive general liability insurance policy with coverage comparable to that which would be required under prudent lending requirements and in an amount not less than $1.0 million per occurrence, and (c) to the extent consistent with the Servicing Standard, a business interruption or rental loss insurance covering revenues or rents for a period of at least 18 months; provided, however, that the Special Servicer shall not be required in any event to maintain or obtain insurance coverage described in this paragraph beyond what is reasonably available at a commercially reasonable rate and consistent with the Servicing Standard.

 

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All such insurance policies maintained as described above shall contain (if they insure against loss to property) a “standard” mortgagee clause, with loss payable to the Master Servicer (on behalf of the Trustee on behalf of Certificateholders and the Companion Loan Holder), or shall name the Trustee as the insured, with loss payable to the Special Servicer on behalf of the Trustee (on behalf of Certificateholders and the Companion Loan Holder) (in the case of insurance maintained if the Mortgaged Property is an REO Property). Any amounts collected by the Master Servicer or Special Servicer, as applicable, under any such policies (other than amounts to be applied to the restoration or repair of the Mortgaged Property or REO Property or amounts to be released to the Borrower, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 3.06 of this Agreement, in the case of amounts received in respect of the Whole Loan, or in the REO Account of the Special Servicer, subject to withdrawal pursuant to Section 3.15 of this Agreement, in the case of amounts received in respect of the REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders or Companion Loan Holder, be added to the Stated Principal Balance of the Whole Loan, notwithstanding that the terms of the Loan Agreement may so permit; provided, however, that this sentence shall not limit the rights of the Master Servicer or Special Servicer on behalf of the Trust Fund to enforce any obligations of the Borrower under the Whole Loan. Any costs incurred by the Master Servicer in maintaining insurance policies in respect of the Whole Loan or a Specially Serviced Loan (other than the REO Property) (i) if the Borrower defaults on their obligation to do so, shall be advanced by the Master Servicer as a Property Advance and will be charged to the Borrower and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the Stated Principal Balance of the Whole Loan, notwithstanding that the terms of the Whole Loan may so permit. Any cost incurred by the Special Servicer in maintaining any such insurance policies with respect to the REO Property shall be an expense of the Trust Fund (allocated in accordance with the allocation provisions of the Co-Lender Agreement) payable out of the REO Account or, if the amount on deposit therein is insufficient therefor, advanced by the Master Servicer as a Property Advance (or paid from the Collection Account if the Master Servicer determines such Advance would be a Nonrecoverable Advance, subject to Section 3.21(d) of this Agreement).

 

(b)       If either:

 

(x) the Master Servicer or Special Servicer obtains and maintains, or causes to be obtained and maintained, a blanket policy or master force-placed policy insuring against hazard losses on all of the Mortgaged Property or REO Property, as applicable, then, to the extent such policy

 

(i) is obtained from a Qualified Insurer, and

 

(ii) provides protection equivalent to the individual policies otherwise required, or

 

(y) the Master Servicer or Special Servicer has long-term unsecured debt obligations or deposit accounts that are rated not lower than “A-” by S&P, and the Master Servicer or Special Servicer self-insures for its obligation to maintain the individual policies otherwise required,

 

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then the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the Mortgaged Property or REO Property, as applicable.

 

Such a blanket or master force-placed policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or Special Servicer, as the case may be, that maintains such policy shall, if there shall not have been maintained on the Mortgaged Property or REO Property thereunder a hazard insurance policy complying with the requirements of Section 3.08(a) of this Agreement, and there shall have been one or more losses that would have been covered by such an individual policy, promptly deposit into the Collection Account, from its own funds, the amount not otherwise payable under the blanket or master force-placed policy in connection with such loss or losses because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the Whole Loan (or, in the absence of any such deductible limitation, the deductible limitation for an individual policy which is consistent with the Servicing Standard). The Master Servicer and Special Servicer, as the case may be, shall prepare and present, on behalf of itself, the Trustee and Certificateholders and the Companion Loan Holder claims under any such blanket or master force-placed policy maintained by it in a timely fashion in accordance with the terms of such policy. If the Master Servicer or Special Servicer, as applicable, causes the Mortgaged Property or REO Property to be covered by such “force-placed” insurance policy, the incremental costs of such insurance applicable to the Mortgaged Property or REO Property (i.e., other than any minimum or standby premium payable for such policy whether or not the Mortgaged Property or REO Property is covered thereby) shall be paid as a Property Advance.

 

(c)        If the Whole Loan is subject to an Environmental Insurance Policy, and the Master Servicer has actual knowledge of any event giving rise to a claim under an Environmental Insurance Policy, the Master Servicer shall notify the Special Servicer to such effect and the Master Servicer shall take reasonable actions as are in accordance with the Servicing Standard and the terms and conditions of such Environmental Insurance Policy to make a claim thereunder and achieve the payment of all amounts to which the Trust is entitled thereunder. If the Whole Loan becomes a Specially Serviced Loan or an REO Loan and is subject to an Environmental Insurance Policy, if the Special Servicer has actual knowledge of any event giving rise to a claim under an Environmental Insurance Policy, such Special Servicer shall take reasonable actions as are in accordance with the Servicing Standard and the terms and conditions of such Environmental Insurance Policy to make a claim thereunder and achieve the payment of all amounts to which the Trust, on behalf of the Certificateholders and the Companion Loan Holder, is entitled thereunder. Any legal fees or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any claim under an Environmental Insurance Policy described above (whether by the Master Servicer or Special Servicer) shall be paid by, and reimbursable to, the Master Servicer as a Property Advance.

 

(d)       The Master Servicer and Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which the Whole Loan is a Specially Serviced Loan or an REO Loan) keep in force with a Qualified Insurer, a fidelity bond in such form and amount as are consistent with the Servicing Standard. The Master Servicer or Special Servicer, as applicable, shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond

 

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coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without ten days’ prior written notice to the Trustee. So long as the long-term unsecured debt obligations or deposit accounts of the Master Servicer (or its corporate parent if such insurance is guaranteed by its parent) or the Special Servicer (or its corporate parent if such insurance is guaranteed by its parent), as applicable, are rated not lower than “A-” by S&P, the Master Servicer or the Special Servicer, as applicable, may self-insure with respect to the fidelity bond coverage required as described above, in which case it shall not be required to maintain an insurance policy with respect to such coverage.

 

The Master Servicer and Special Servicer, as applicable, shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which the Whole Loan is a Specially Serviced Loan or an REO Loan) also keep in force with a Qualified Insurer a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with their servicing obligations hereunder, which policy or policies shall be in such form and amount as are consistent with the Servicing Standard. The Master Servicer or the Special Servicer, as applicable, shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten days’ prior written notice to the Trustee. So long as the long-term unsecured debt obligations or deposit accounts of the Master Servicer (or its corporate parent if such insurance is guaranteed by its parent) or the Special Servicer (or its corporate parent), as applicable, are rated not lower than “A” by S&P, the Master Servicer or the Special Servicer, as applicable, may self-insure with respect to the errors and omissions coverage required as described above, in which case it shall not be required to maintain an insurance policy with respect to such coverage.

 

Section 3.09 Enforcement of Due-on-Sale Clauses; Assumption Agreements; Defeasance Provisions. (a) If the Whole Loan contains a provision in the nature of a “due-on-sale” clause (including, without limitation, sales or transfers of the Mortgaged Property (in full or part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the Borrower or its owners), which by its terms:

 

(i)        provides that the Whole Loan will (or may at the mortgagee’s option) become due and payable upon the sale or other transfer of an interest in the Mortgaged Property (including, without limitation, the sale, transfer, pledge or hypothecation of direct or indirect interests in the Borrower or its owners),

 

(ii)       provides that the Whole Loan may not be assumed without the consent of the related mortgagee in connection with any such sale or other transfer, or

 

(iii)      provides that the Whole Loan may be assumed or transferred without the consent of the mortgagee, provided certain conditions set forth in the Loan Documents are satisfied,

 

then, for so long as the Trust Loan is included in the Trust Fund, subject to the consent rights of the Directing Holder during a Subordinate Control Period, neither the Master Servicer (with

 

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respect to the Whole Loan if it is a Performing Loan) (with the consent of the Special Servicer) nor the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan), as applicable, on behalf of the Trust Fund, shall be required to enforce any such due-on-sale clauses and in connection therewith neither shall be required to (x) accelerate payments thereon or (y) withhold its consent to such an assumption if (1) such provision is not enforceable under applicable law or if the Master Servicer (with respect to the Whole Loan if it is a Performing Loan, and with the consent of the Special Servicer) or the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan), as applicable, determines, that the enforcement of such provision is reasonably likely to result in meritorious legal action by the Borrower or (2) the Master Servicer (with the consent of the Special Servicer) or the Special Servicer, as applicable, determines, in accordance with the Servicing Standard, that granting such consent would be likely to result in a greater recovery, on a present value basis (discounting at the related Calculation Rate), than would enforcement of such clause. If the Master Servicer (with respect to the Whole Loan if it is a Performing Loan and with the consent of the Special Servicer) or the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan), as applicable, determines that (A) granting such consent would be likely to result in a greater recovery, (B) such provision is not legally enforceable, or (C) that the conditions described in clause (a)(iii) above relating to the assumption or transfer of the Whole Loan have been satisfied, the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) (with the consent of the Special Servicer) or the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or REO Loan) is authorized to take or enter into an assumption agreement from or with the Person to whom the Mortgaged Property has been or is about to be conveyed, and to release the original Borrower from liability upon the Whole Loan and substitute the new borrower as obligor thereon, provided that (a) the credit status of the prospective new borrower is in compliance with the Master Servicer’s or the Special Servicer’s servicing standards and criteria and the terms of the Mortgage and (b) the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) or the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or REO Loan), as applicable, has received a No Downgrade Confirmation from each the Rating Agencies (or has been deemed to satisfy such requirement). In addition, with respect to the Companion Loan, neither the Master Servicer nor the Special Servicer shall waive any rights under a due on sale clause unless it first obtains a No Downgrade Confirmation with respect to the Companion Loan Securities to the extent required under the related Other Securitization Trust. The Master Servicer and the Special Servicer shall be entitled to rely on the Other Servicer and/or the Other Special Servicer of the related Other Securitization Trust to determine whether a No Downgrade Confirmation is required with respect to the Companion Loan pursuant to and in accordance with the related Other Pooling and Servicing Agreement. In connection with each such assumption or substitution entered into by the Special Servicer, the Special Servicer shall give prior notice thereof to the Master Servicer. The Master Servicer (with respect to the Whole Loan if it is a Performing Loan) or the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan) shall notify the Trustee and the Certificate Administrator that any such assumption or substitution agreement has been completed by forwarding to the Custodian (with a copy to the Master Servicer, the Certificate Administrator and the Trustee, as applicable) the original copy of such agreement, which copies shall be added to the Mortgage File and shall, for all purposes, be considered a part of the Mortgage File to the same extent as all other documents and instruments constituting a part thereof. To the extent not otherwise precluded by the Loan Documents, neither the Master Servicer (with respect to the Whole Loan

 

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if it is a Performing Loan) (with the consent of the Special Servicer) nor the Special Servicer (with respect to a Specially Serviced Loan or an REO Loan) shall approve an assumption or substitution without requiring the Borrower to pay any fees owed to the Rating Agencies associated with the approval of such assumption or substitution. However, in the event that the Borrower is required but fails to pay such fees, such fees shall be an expense of the Trust Fund; provided that the Master Servicer (if the Whole Loan is a Performing Loan) or the Special Servicer (if the Whole Loan is a Specially Serviced Loan), shall be required, after receiving payment from amounts on deposit in the Collection Account, if any, to (i) promptly notify the Companion Loan Holder and (ii) use efforts consistent with the Servicing Standard to exercise on behalf of the Trust Fund the rights of the Trust Fund under the Co-Lender Agreement to obtain reimbursement for a pro rata portion of such amount allocable to the Companion Loan from the Companion Loan Holder.

 

(b)       If the Whole Loan contains a provision in the nature of a “due-on-encumbrance” clause, which by its terms:

 

(i)        provides that the Whole Loan shall (or may at the mortgagee’s option) become due and payable upon the creation of any lien or other encumbrance on the Mortgaged Property or any direct or indirect ownership interest in the Borrower (including, unless specifically permitted, any mezzanine financing of the Borrower or the Mortgaged Property or any sale or transfer of preferred equity in the Borrower or its owners),

 

(ii)       requires the consent of the mortgagee to the creation of any such lien or other encumbrance on the Mortgaged Property (including, without limitation, any mezzanine financing of the Borrower or the Mortgaged Property or any sale or transfer of preferred equity in the Borrower or its owners), or

 

(iii)      provides that the Mortgaged Property may be further encumbered without the consent of the mortgagee (including, without limitation, any mezzanine financing of the Borrower or the Mortgaged Property or any sale or transfer of preferred equity in the Borrower or its owners), provided that certain conditions set forth in the Loan Documents are satisfied,

 

then, subject to the consent rights of the Directing Holder during a Subordinate Control Period, neither the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) (with the consent of the Special Servicer) nor the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan), on behalf of the Trust Fund, shall be required to enforce such due-on-encumbrance clauses and in connection therewith, will not be required to (i) accelerate the payments on the Whole Loan or (ii) withhold its consent to such lien or encumbrance, if the Master Servicer (with the consent of the Special Servicer) or the Special Servicer, as applicable, (x) determines, in accordance with the Servicing Standard that such enforcement would not be in the best interests of the Trust Fund or Companion Loan Holders, or that in the case of the circumstances described in clause (b)(iii) above, that the conditions to further encumbrance have been satisfied and (y) receives prior No Downgrade Confirmation from the Rating Agencies (or has been deemed to satisfy such requirement). In addition, with respect to the Companion Loan, neither the Master Servicer nor the Special Servicer shall waive any rights under a due on encumbrance clause unless it first obtains a No Downgrade

 

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Confirmation with respect to the related Companion Loan Securities to the extent required under each related Other Securitization Trust. The Master Servicer and the Special Servicer shall be entitled to rely on the Other Servicer and/or the Other Special Servicer of the related Other Securitization Trust to determine whether a No Downgrade Confirmation is required with respect to the Companion Loan pursuant to and in accordance with the related Other Pooling and Servicing Agreement. To the extent not otherwise precluded by the Loan Documents, neither the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) nor the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or REO Loan) shall approve such lien or encumbrance without requiring the Borrower to pay any fees owed to the Rating Agencies associated with the approval of such lien or encumbrance. However, in the event that the Borrower is required but fails to pay such fees, such fees shall be an expense of the Trust Fund; provided that the Master Servicer (if the Whole Loan is a Performing Loan) or the Special Servicer (if the Whole Loan is a Specially Serviced Loan), shall be required, after receiving payment from amounts on deposit in the Collection Account, if any, to (i) promptly notify the Companion Loan Holder and (ii) use efforts consistent with the Servicing Standard to exercise on behalf of the Trust Fund the rights of the Trust Fund under the Co-Lender Agreement to obtain reimbursement for a pro rata portion of such amount allocable to the Companion Loan from the Companion Loan Holder.

 

(c)       [Reserved].

 

(d)       The Master Servicer and the Special Servicer, as applicable, shall each provide copies of any waivers it effects pursuant to Section 3.09(a) or (b) of this Agreement to the other party and the 17g-5 Information Provider (which shall promptly post such waivers to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement) with respect to the Trust Loan.

 

(e)       Nothing in this Section 3.09 shall constitute a waiver of the Trustee’s right, as the mortgagee of record, to receive notice of any assumption of the Trust Loan, any sale or other transfer of the Mortgaged Property or the creation of any lien or other encumbrance with respect to the Mortgaged Property.

 

(f)        In connection with the taking of, or the failure to take, any action pursuant to this Section 3.09, the Special Servicer shall not agree to modify, waive or amend, and no assumption or substitution agreement entered into pursuant to Section 3.09(a) of this Agreement shall contain any terms that are different from, any term of the Whole Loan or the Note, other than pursuant to Section 3.26 hereof, as applicable.

 

(g)       When the Special Servicer’s consent is requested under this Section 3.09, such consent shall be deemed given 15 Business Days after receipt (unless earlier objected to) by the Special Servicer from the Master Servicer of the Master Servicer’s written analysis and recommendation with respect to such proposed action together with such other information reasonably required by the Special Servicer.

 

(h)       If the Whole Loan permits release of the Mortgaged Property through defeasance:

 

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(i)        subject to the consent rights and process set forth in Section 6.09 with respect to Major Decisions, the Master Servicer shall process all defeasances of the Whole Loan in accordance with the terms of the related Loan Documents, and shall be entitled to any defeasance fees paid relating thereto;

 

(ii)       if the Whole Loan requires that the lender purchase the required government securities, then the Master Servicer shall purchase, or shall cause the purchase of, such obligations on behalf of the Trust, at the Borrower’s expense, in accordance with the terms of the Whole Loan; provided that the Master Servicer shall not accept the amounts paid by the Borrower to effect defeasance until acceptable government securities have been identified;

 

(iii)       to the extent not inconsistent with the Whole Loan, the Master Servicer shall require the Borrower to provide an Opinion of Counsel (which shall be an expense of the Borrower) to the effect that the Trustee has a first priority perfected security interest in the defeasance collateral (including the government securities) and the assignment of the defeasance collateral is valid and enforceable;

 

(iv)      to the extent not inconsistent with the Whole Loan, the Master Servicer shall require a certificate at the Borrower’s expense from an Independent certified public accountant certifying to the effect that the government securities will provide cash flows sufficient to meet all payments of interest and principal (including payments at maturity) on the Whole Loan in compliance with the requirements of the terms of the related Loan Documents;

 

(v)       prior to permitting release of the Mortgaged Property through defeasance, the Master Servicer shall require an Opinion of Counsel to the effect that such release will not cause either Trust REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or cause a tax to be imposed on the Trust Fund under the REMIC Provisions; provided that to the extent not inconsistent with the Whole Loan, the Borrower shall pay the cost related to the Opinion of Counsel (and shall otherwise be a Property Advance);

 

(vi)      no defeasance shall occur on or prior to the second anniversary of the Startup Day of the Trust REMICs or if the Companion Loan is held by a REMIC, on or prior to the second anniversary of the startup day of such REMIC;

 

(vii)     the Master Servicer shall, at the expense of the Borrower (to the extent not inconsistent with the related Loan Documents), cause the U.S. government securities to be held for the benefit of the Certificateholders and the Companion Loan Holder, and apply payments of principal and interest received on the government obligations in respect of the defeased Whole Loan in accordance with the terms of the Loan Documents;

 

(viii)    the Master Servicer shall, in accordance with the Servicing Standard, enforce provisions in the Whole Loan requiring the Borrower to pay all reasonable expenses associated with a defeasance;

 

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(ix)       to the extent not inconsistent with the Whole Loan, or to the extent the Loan Documents provide the lender with discretion, the Master Servicer shall require a single purpose entity, formed solely for the purpose of owning and pledging the government securities related to the Whole Loan, to act as a successor borrower;

 

(x)        to the extent not inconsistent with the Whole Loan, each Rating Agency and, to the extent required by the Other Securitization Trust, each rating agency relating to any Companion Loan Securities must provide a No Downgrade Confirmation; and

 

(xi)       to the extent not required or permitted to be placed in a separate account, the Master Servicer shall deposit all payments received by it from defeasance collateral substituted for the Mortgaged Property into the Collection Account and treat any such payments as payments made on the Whole Loan in advance of its Due Date in accordance with clause (a) of the definition of Principal Distribution Amount, and not as a prepayment of the Whole Loan. Notwithstanding anything herein to the contrary, in no event shall the Master Servicer permit such amounts to be maintained in the Collection Account for a period in excess of 365 days.

 

Section 3.10 Appraisals; Realization upon Defaulted Whole Loan. (a) Contemporaneously with the earliest of (i) the effective date of any (A) modification of the Maturity Date or extended Maturity Date, the Whole Loan Rate, principal balance or amortization terms of the Whole Loan, (B) extension of the Maturity Date or extended Maturity Date of the Whole Loan as described below in Section 3.26 of this Agreement, or (C) consent to the release of the Mortgaged Property from the lien of the Mortgage other than pursuant to the terms of the Whole Loan and (ii) the occurrence of an Appraisal Reduction Event, the Special Servicer shall use commercially reasonable efforts to obtain an Updated Appraisal (or a letter update for an existing appraisal which is less than two years old) within 60 days of such event, the cost of which shall constitute a Property Advance; provided, however, that the Special Servicer shall not be required to obtain an Updated Appraisal pursuant to clauses (i) and (ii) above with respect to the Mortgaged Property for which there exists an Appraisal or Updated Appraisal which is less than nine months old unless the Special Servicer has actual knowledge of a material adverse change in circumstances that, consistent with the Servicing Standard, would call into question the validity of such Appraisal or Updated Appraisal. For so long as the Whole Loan is a Specially Serviced Loan, the Special Servicer shall obtain letter updates to an Updated Appraisal every nine months. The Special Servicer shall use all Updated Appraisals it obtains to calculate any Appraisal Reduction Amount. Prior to the Special Servicer granting extensions beyond one year or any subsequent extension after granting a one year extension with respect to the Whole Loan, the Special Servicer shall recalculate any Appraisal Reduction Amount based on an Updated Appraisal. The Special Servicer shall obtain letter updates, every nine months, to an Updated Appraisal for so long as an Appraisal Reduction Event exists with respect to the Whole Loan and recalculate the Appraisal Reduction Amount based on such Updated Appraisal. In addition, upon receipt of each Updated Appraisal, the Special Servicer shall re-compute the Appraisal Reduction Amount, which shall be adjusted accordingly, and if required in accordance with any such adjustment, each Class of Certificates that has been notionally reduced as a result of Appraisal Reduction Amounts shall have its related Certificate Balance notionally restored to the extent required by such adjustment of the Appraisal Reduction Amount, and the Special Servicer shall redetermine whether a Subordinate Control Period or a Subordinate Consultation

 

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Period is then in effect and, for the avoidance of doubt, which Class of Certificates is the then-Controlling Class. The Special Servicer shall send all such letter updates and Updated Appraisals to the Trustee, the Certificate Administrator, the Directing Holder (during any Subordinate Control Period and any Subordinate Consultation Period), the Operating Advisor and the 17g-5 Information Provider (which shall promptly post such materials to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement). Within 15 days after the occurrence of an Appraisal Reduction Event, the Special Servicer will be required to notify the Directing Holder (but only during any Subordinate Control Period and any Subordinate Consultation Period) and the Operating Advisor of the occurrence of such Appraisal Reduction Event. The Special Servicer shall also notify the Other Servicer and Other Trustee of the existence of an Appraisal Reduction Event and any related Appraisal Reduction Amount. The Special Servicer shall be deemed to have delivered notice of any such Appraisal Reduction Event and any related Appraisal Reduction Amount if the Master Servicer includes such event and/or amount in its monthly servicer statements provided to the Other Servicer.

 

The Special Servicer shall monitor the Whole Loan so long as it is a Specially Serviced Loan, evaluate whether the causes of the default can be corrected over a reasonable period without significant impairment of the value of the Mortgaged Property, initiate corrective action (with (i) notification to and the consent of the Directing Holder during any Subordinate Control Period and upon consultation with the Directing Holder during any Subordinate Consultation Period, and (ii) upon consultation with the Operating Advisor during any Operating Advisor Consultation Period) in cooperation with the Borrower if, in the Special Servicer’s judgment a cure is likely, and take such other actions (including without limitation, negotiating and accepting a discounted payoff of the Whole Loan) as are consistent with the Servicing Standard. If, in the Special Servicer’s judgment, such corrective action has been unsuccessful, no satisfactory arrangement can be made for collection of delinquent payments, and the Specially Serviced Loan has not been released from the Trust Fund pursuant to any provision hereof, and except as otherwise specifically provided in Section 3.09(a) and 3.09(b) of this Agreement, the Special Servicer may, to the extent consistent with the Asset Status Report and with the Servicing Standard, accelerate the Specially Serviced Loan and commence a foreclosure or other acquisition with respect to the Mortgaged Property; provided that the Special Servicer determines that such acceleration and foreclosure are more likely to produce a greater recovery to Certificateholders and the Companion Loan Holder (as a collective whole as if such Certificateholders and Companion Loan Holder constituted a single lender) on a present value basis (discounting at the related Calculation Rate) than would a waiver of such default or an extension or modification in accordance with the provisions of Section 3.26 hereof. The Master Servicer shall pay the costs and expenses in any such proceedings as a Property Advance unless the Master Servicer or the Special Servicer, as applicable, determines, in its good faith judgment, that such Property Advance would constitute a Nonrecoverable Advance; provided, however, that if such Property Advance would constitute a Nonrecoverable Advance but the Special Servicer determines (with the Master Servicer permitted to conclusively rely upon any such determination) that such payment would be in the best interests of the Certificateholders and the Companion Loan Holder (as a collective whole as if such Certificateholders and Companion Loan Holder constituted a single lender) the Special Servicer shall direct the Master Servicer to make such payment from the Collection Account, which payment shall be an Additional Trust Fund Expense. The Trustee shall be entitled to conclusively rely upon any determination of the Master Servicer or Special Servicer that a Property Advance, if made, would constitute a

 

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Nonrecoverable Advance. If the Master Servicer does not make such Property Advance in violation of the second preceding sentence, the Trustee shall make such Property Advance, unless the Trustee determines that such Property Advance would be a Nonrecoverable Advance. The Master Servicer and the Trustee, as applicable, shall be entitled to reimbursement of Property Advances (with interest at the Advance Rate) made pursuant to this paragraph to the extent permitted by Section 3.06 of this Agreement.

 

The Master Servicer shall deliver by electronic mail (or via other means of electronic delivery reasonably acceptable to the Master Servicer and the Special Servicer) to the Special Servicer any information in the Master Servicer’s possession that is reasonably required to determine, calculate, redetermine or recalculate any Appraisal Reduction Amount or updated Appraisal Reduction Amount pursuant to the definition thereof, using reasonable best efforts to deliver such information, within four (4) Business Days following the Special Servicer’s written request therefor (which request shall be made promptly, but in no event later than ten (10) Business Days after the Special Servicer’s receipt of the applicable Appraisal); provided, however, that the Special Servicer’s failure to timely make such request shall not relieve the Master Servicer of its obligation to provide such information to the Special Servicer in the manner and timing set forth in this sentence; provided, further, that it shall not be a Special Servicer Termination Event if the Special Servicer fails to satisfy its obligation to determine, calculate, redetermine or recalculate an Appraisal Reduction Amount within the time periods set forth in this Agreement to the extent such failure is due to or caused by the Master Servicer’s failure to deliver the information reasonably required to make such determination, calculation, redetermination or recalculation within the time periods set forth in this Agreement. The Master Servicer shall not calculate Appraisal Reduction Amounts.

 

(b)       If the Special Servicer elects to proceed with a non-judicial foreclosure in accordance with the laws of the state where the Mortgaged Property is located, the Special Servicer shall not be required to pursue a deficiency judgment against the Borrower or any other liable party if (i) the laws of the state do not permit such a deficiency judgment after a non-judicial foreclosure or (ii) if the Special Servicer determines, in its best judgment, that the likely recovery if a deficiency judgment is obtained will not be sufficient to warrant the cost, time, expense and/or exposure of pursuing the deficiency judgment and such determination is evidenced by an Officer’s Certificate delivered to the Trustee and the Certificate Administrator.

 

(c)        In the event that title to the Mortgaged Property is acquired in foreclosure or by deed-in-lieu of foreclosure, the deed or certificate of sale shall be issued to the Trustee, or to its nominee (which shall not include the Special Servicer) or a separate Trustee or co-Trustee on behalf of the Trustee as Holder of the Lower-Tier Regular Interests and the Certificateholders and the Companion Loan Holder. Notwithstanding any such acquisition of title and cancellation or partial cancellation of the Whole Loan, the Whole Loan shall (except for purposes of Section 9.01 of this Agreement) be considered to be an REO Loan until such time as the REO Property shall be sold by the Trust Fund and shall be reduced only by collections net of expenses. Consistent with the foregoing, for purposes of all calculations hereunder, so long as the Whole Loan shall be considered to be an outstanding Whole Loan, as applicable:

 

(i)        it shall be assumed that, notwithstanding that the indebtedness evidenced by the Note shall have been discharged or partially discharged, the Note and, for purposes of determining the Stated Principal Balance thereof, the related amortization

 

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schedule, if any, in effect at the time of any such acquisition of title shall remain in effect; and

 

(ii)       subject to Section 1.02(f) of this Agreement, Net REO Proceeds received in any month shall be applied to amounts that would have been payable under the Note in accordance with the terms of the Note and the Co-Lender Agreement. In the absence of such terms, Net REO Proceeds shall, subject to Section 1.02(f) of this Agreement, be deemed to have been received first, in payment of the accrued interest that remained unpaid on the date that the REO Property was acquired by the Trust Fund; second, in respect of the delinquent principal installments that remained unpaid on such date; and thereafter, Net REO Proceeds received in any month shall be applied to the payment of installments of principal, if any, and accrued interest on the Whole Loan deemed to be due and payable in accordance with the terms of the Note and such amortization schedule, if any, until such principal has been paid in full and then to other amounts due under the Whole Loan. If such Net REO Proceeds exceed the Monthly Payment then payable, the excess shall be treated as a Principal Prepayment received in respect of the Whole Loan.

 

(d)       Notwithstanding any provision herein to the contrary, the Special Servicer shall not acquire for the benefit of the Trust Fund and the Companion Loan Holder any personal property pursuant to this Section 3.10 unless either:

 

(i)        such personal property is incident to real property (within the meaning of Section 856(e)(l) of the Code) so acquired by the Special Servicer for the benefit of the Trust Fund and the Companion Loan Holder; or

 

(ii)       the Special Servicer shall have requested and received an Opinion of Counsel (which opinion shall be an expense of the Lower-Tier REMIC) to the effect that the holding of such personal property by the Lower-Tier REMIC will not cause an Adverse REMIC Event at any time that any Certificate is outstanding.

 

(e)       Notwithstanding any provision to the contrary in this Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain title to any direct or indirect partnership interest or other equity interest in the Borrower pledged pursuant to any pledge agreement unless the Special Servicer shall have requested and received an Opinion of Counsel (which opinion shall be an expense of the Trust Fund and in accordance with the allocation provisions of the Co-Lender Agreement) to the effect that the holding of such partnership interest or other equity interest by the Trust Fund will not cause an Adverse REMIC Event at any time that any Certificate is outstanding.

 

(f)        Notwithstanding any provision to the contrary contained in this Agreement, the Special Servicer shall not cause the Trustee, on behalf of the Trust Fund, to obtain title to the Mortgaged Property as a result of or in lieu of foreclosure or otherwise, to obtain title to any direct or indirect partnership interest in the Borrower pledged pursuant to a pledge agreement and thereby be the beneficial owner of the Mortgaged Property, to have a receiver of rents appointed with respect to, and shall not otherwise cause the Trustee to acquire possession of, or take any other action with respect to, the Mortgaged Property if, as a result of any such action, the Trustee, for the Trust Fund or the Certificateholders or Companion Loan

 

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Holder would be considered to hold title to, to be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of the Mortgaged Property within the meaning of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time, or any comparable law, unless the Special Servicer has previously determined in accordance with the Servicing Standard, based on an updated environmental assessment prepared by an Independent Person who regularly conducts environmental audits, that:

 

(i)        the Mortgaged Property is in compliance with applicable environmental laws or, if not, after consultation with an environmental consultant, that it would be in the best economic interest of the Certificateholders and the Companion Loan Holder, as a collective whole as if such Certificateholders and Companion Loan Holder constituted a single lender, to take such actions as are necessary to bring the Mortgaged Property in compliance therewith, and

 

(ii)       there are no circumstances present at the Mortgaged Property relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation could be required under any currently effective federal, state or local law or regulation, or that, if any such Hazardous Materials are present for which such action could be required, after consultation with an environmental consultant, it would be in the best economic interest of the Certificateholders and the Companion Loan Holder, as a collective whole as if such Certificateholders and the Companion Loan Holder constituted a single lender, to take such actions with respect to the Mortgaged Property.

 

In the event that the environmental assessment first obtained by the Special Servicer with respect to the Mortgaged Property indicates that the Mortgaged Property may not be in compliance with applicable environmental laws or that Hazardous Materials may be present but does not definitively establish such fact, the Special Servicer shall cause such further environmental tests to be conducted by an Independent Person who regularly conducts such tests as the Special Servicer shall deem prudent to protect the interests of Certificateholders and the Companion Loan Holder. Any such tests shall be deemed part of the environmental assessment obtained by the Special Servicer for purposes of this Section 3.10.

 

(g)       The environmental assessment contemplated by Section 3.10(f) of this Agreement shall be prepared within three months (or as soon thereafter as practicable) of the determination that such assessment is required by any Independent Person who regularly conducts environmental audits for purchasers of commercial property where the Mortgaged Property is located, as determined by the Special Servicer in a manner consistent with the Servicing Standard. Upon the written direction of the Special Servicer and delivery by the Special Servicer to the Master Servicer of pertinent back-up information the Master Servicer shall advance the cost of preparation of such environmental assessments as a Property Advance unless the Master Servicer determines, in its good faith judgment, that such Property Advance would be a Nonrecoverable Advance. The Master Servicer shall be entitled to reimbursement of Property Advances (with interest at the Advance Rate) made pursuant to the preceding sentence to the extent permitted by Section 3.06. The Special Servicer shall provide written reports and a copy of any environmental assessments in electronic format to the Master Servicer, the Companion Loan Holder and the 17g-5 Information Provider (which shall promptly post such materials to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this

 

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Agreement), monthly regarding any actions taken by the Special Servicer with respect to the Mortgaged Property securing a Defaulted Mortgage Loan as to which the environmental testing contemplated by Section 3.10(f) of this Agreement has revealed that either of the conditions set forth in clause (i) and (ii) of the first sentence thereof has not been satisfied, in each case until the earlier to occur of (i) satisfaction of both such conditions, (ii) repurchase of the Trust Loan by the Trust Loan Seller or (iii) release of the lien of the Mortgage on the Mortgaged Property.

 

(h)       If the Special Servicer determines pursuant to Section 3.10(f)(i) of this Agreement that the Mortgaged Property is not in compliance with applicable environmental laws but that it is in the best economic interest of the Trust Fund and the Companion Loan Holder, as a collective whole as if the Certificateholders and the Companion Loan Holder constituted a single lender, to take such actions as are necessary to bring the Mortgaged Property in compliance therewith, or if the Special Servicer determines pursuant to Section 3.10(f)(ii) of this Agreement that the circumstances referred to therein relating to Hazardous Materials are present but that it is in the best economic interest of the Trust Fund and the Companion Loan Holder, as a collective whole as if the Certificateholders and the Companion Loan Holder constituted a single lender, to take such action with respect to the containment, clean-up or remediation of Hazardous Materials affecting the Mortgaged Property as is required by law or regulation, the Special Servicer shall take such action (subject to the rights of the Directing Holder to consent to and/or consult in respect of such action) as it deems to be in the best economic interest of the Trust Fund and Companion Loan Holder, as a collective whole as if such Certificateholders and Companion Loan Holder constituted a single lender, but only if the Certificate Administrator has mailed notice to the Holders of the Regular Certificates and Companion Loan Holder of such proposed action, which notice shall be prepared by the Special Servicer, and only if the Certificate Administrator does not receive, within 30 days of such notification, instructions from the Holders of Regular Certificates entitled to a majority of the Voting Rights and the Companion Loan Holder directing the Special Servicer not to take such action. Notwithstanding the foregoing, if the Special Servicer reasonably determines that it is likely that within such 30-day period irreparable environmental harm to the Mortgaged Property would result from the presence of such Hazardous Materials and provides a prior written statement to the Trustee and the Certificate Administrator setting forth the basis for such determination, then the Special Servicer may take or cause to be taken such action to remedy such condition as may be consistent with the Servicing Standard. None of the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer shall be obligated to take any action or not take any action pursuant to this Section 3.10(h) at the direction of the Certificateholders and the Companion Loan Holder unless the Certificateholders and the Companion Loan Holder agree to indemnify the Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer with respect to such action or inaction. The Master Servicer shall advance the cost of any such compliance, containment, clean-up or remediation as a Property Advance unless the Master Servicer determines, in its good faith judgment, that such Advance would constitute a Nonrecoverable Advance.

 

(i)         The Special Servicer shall notify the Master Servicer if the Mortgaged Property is abandoned or foreclosed and requires reporting to the IRS and shall provide the Master Servicer with all information regarding forgiveness of indebtedness, abandonment or foreclosure as required to be reported with respect to the Whole Loan and the Master Servicer shall report to the IRS and the Borrower, in the manner required by applicable law, such

 

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information via Form 1099C or 1099A, all forgiveness of indebtedness, abandonment or foreclosure to the extent such information has been provided to the Master Servicer by the Special Servicer. The Master Servicer shall deliver a copy of any such report to the Trustee, the Certificate Administrator and the Special Servicer.

 

(j)         The costs of any Updated Appraisal obtained pursuant to this Section 3.10 shall be paid by the Master Servicer as a Property Advance and shall be reimbursable from the Collection Account.

 

Section 3.11 Custodian to Cooperate; Release of Mortgage File. Upon the payment in full of the Whole Loan, or the receipt by the Master Servicer of a notification that payment in full has been escrowed in a manner customary for such purposes, the Master Servicer shall immediately notify the Custodian by a certification (which certification shall include a statement to the effect that all amounts received or to be received in connection with such payment which are required to be deposited in the Collection Account pursuant to Section 3.05 of this Agreement have been or will be so deposited) of a Servicing Officer and shall request delivery to it of the Mortgage File. Any expense incurred in connection with any instrument of satisfaction or deed of reconveyance that is not paid by the Borrower shall be chargeable to the Trust Fund. The Master Servicer agrees to use reasonable efforts in accordance with the Servicing Standard to enforce any provisions in the Loan Documents that require the Borrower to pay such amounts. No expenses incurred in connection with any instrument of satisfaction or deed of reconveyance shall be an expense of the Trustee or the Custodian or chargeable to the Collection Account.

 

From time to time upon request of the Master Servicer or the Special Servicer and delivery to the Custodian of a Request for Release, the Custodian shall promptly release the Mortgage File (or any portion thereof) designated in such Request for Release to the Master Servicer or the Special Servicer, as applicable. Upon return of the foregoing to the Custodian, or in the event of a liquidation or conversion of the Whole Loan into an REO Loan, or receipt by the Custodian of a certificate of a Servicing Officer stating that the Mortgaged Property was liquidated and that all amounts received or to be received in connection with such liquidation which are required to be deposited into the Collection Account have been so deposited, or that the Whole Loan has become an REO Loan, the Custodian shall deliver a copy of the Request for Release to the Master Servicer or the Special Servicer, as applicable.

 

Upon written certification of a Servicing Officer, the Trustee shall execute and deliver to the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) and the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan) any court pleadings, requests for a trustee’s sale or other documents prepared by the Special Servicer, its agents or attorneys, necessary to the foreclosure or trustee’s sale in respect of the Mortgaged Property or to any legal action brought to obtain judgment against the Borrower on the Notes or Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or rights provided by the Note or Mortgage or otherwise available at law or in equity. Each such certification shall include a request that such pleadings or documents be executed by the Trustee and a statement as to the reason such documents or pleadings are required, that the proposed action is consistent with the Servicing Standard and that the execution and delivery thereof by the Trustee will not invalidate or otherwise affect the lien of the related Mortgage, except for the termination of such a lien upon completion of the foreclosure or trustee’s sale.

 

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Section 3.12 Servicing Fees, Trustee/Certificate Administrator Fee and Special Servicing Compensation. (a) As compensation for its activities hereunder, the Master Servicer shall be entitled to the Servicing Fee. The Master Servicer’s rights to the Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer’s responsibilities and obligations under this Agreement or as provided in the following paragraph with respect to the Excess Servicing Fee. In addition, the Master Servicer shall be entitled to receive, as additional Servicing Compensation, to the extent permitted by applicable law and the Loan Documents and the Co-Lender Agreement, (i) all investment income earned on amounts on deposit in the Collection Account and certain Reserve Accounts (to the extent consistent with the Loan Documents), (ii) any Net Default Interest and any other Penalty Charges collected by the Master Servicer or the Special Servicer during a Collection Period accrued on the Whole Loan if it is a Performing Loan, in each case, remaining after application thereof during such Collection Period to pay the Advance Interest Amount relating to such Performing Loan and to pay or reimburse the Trust for any unreimbursed Additional Trust Fund Expenses (including Special Servicing Fees, Workout Fees and Liquidation Fees) relating to such Performing Loan incurred during or prior to such Collection Period, and as further described in (d), (iii) any amounts collected for checks returned for insufficient funds (with respect to the Whole Loan if it is Performing Loan or a Specially Serviced Loan), demand fees (with respect to the Whole Loan if it is a Performing Loan) or similar items (with respect to the Whole Loan if it is a Performing Loan) (but not including Prepayment Charges) and (iv) to the extent permitted by applicable law and the Loan Documents, 100% of any Modification Fees and consent fees with respect to (and other similar fees relating to) the Whole Loan if it is a Performing Loan where the consent of the Special Servicer is not required (50% of such fees where the consent of the Special Servicer is required), 100% of any defeasance fees (provided, that for the avoidance of doubt, any such defeasance fee shall not include any Modification Fees or waiver fees in connection with a defeasance that the Special Servicer is entitled to under this Agreement), 100% of Assumption Fees and consent fees (or similar fees) relating to the transactions referred to in Section 3.09(b) of this Agreement with respect to the Whole Loan if it is a Performing Loan where the consent of the Special Servicer is not required (50% of such fees where the consent of the Special Servicer is required), 100% of loan service transaction fees, 100% of beneficiary statement charges, demand fees or similar items (but not including Prepayment Charges) with respect to the Whole Loan if it is a Performing Loan and 100% of assumption application fees with respect to the Whole Loan if it is a Performing Loan, in each case to the extent received and not required to be deposited or retained in the Collection Account pursuant to Section 3.05 of this Agreement. For the avoidance of doubt, with respect to any fee split between the Master Servicer and the Special Servicer pursuant to the terms of Section 3.12(a) or (b) hereof, the Master Servicer and the Special Servicer shall each have the right, but not any obligation, to reduce or elect not to charge its respective percentage interest in any such fee; provided, however (x) neither the Master Servicer nor the Special Servicer shall have the right to reduce or elect not to charge the percentage interest of any fee due to the other and (y) to the extent either of the Master Servicer or the Special Servicer exercises its right to reduce or elect not to charge its respective percentage interest in any fee, the party that reduced or elected not to charge such fee shall not have any right to share in any portion of the other party’s fee. For the avoidance of doubt, if the Master Servicer decides not to charge any fee, the Special Servicer shall still be entitled to charge the portion of the related fee the Special Servicer would have been entitled to if the Master Servicer had charged a fee and the Master Servicer shall not be entitled to any of such fee charged by the Special Servicer. The Master Servicer shall also be entitled

 

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pursuant to, and to the extent provided in, Section 3.06(a)(viii) or 3.07(b) of this Agreement, as applicable, to withdraw from the Collection Account and to receive from any Borrower Accounts (to the extent not payable to the Borrower under the Whole Loan or applicable law), Prepayment Interest Excess (if any and to the extent any such Prepayment Interest Excess exceeds the amount of any Prepayment Interest Shortfalls) and any interest or other income earned on deposits therein.

 

KeyBank National Association and any successor holder of the Excess Servicing Fee Rights that relate to the Whole Loan (and a successor REO Loan) shall be entitled, at any time, at its own expense, to transfer, sell, pledge or otherwise assign such Excess Servicing Fee Rights in whole (but not in part), in either case, to any Qualified Institutional Buyer or Institutional Accredited Investor (other than a Plan); provided that no such transfer, sale, pledge or other assignment shall be made unless (i) that transfer, sale, pledge or other assignment is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws and is otherwise made in accordance with the Securities Act and such state securities laws, (ii) the prospective transferor shall have delivered to the Depositor a certificate substantially in the form attached as Exhibit P-1 hereto, and (iii) the prospective transferee shall have delivered to the Master Servicer and the Depositor a certificate substantially in the form attached as Exhibit P-2 hereto. None of the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor or the Certificate Registrar is obligated to register or qualify an Excess Servicing Fee Right under the Securities Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer, sale, pledge or assignment of an Excess Servicing Fee Right without registration or qualification. KeyBank National Association and each holder of an Excess Servicing Fee Right desiring to effect a transfer, sale, pledge or other assignment of such Excess Servicing Fee Right shall, and the Master Servicer hereby agrees, and each such holder of an Excess Servicing Fee Right by its acceptance of such Excess Servicing Fee Right shall be deemed to have agreed, in connection with any transfer of such Excess Servicing Fee Right effected by such Person, to indemnify the Certificateholders, the Trust, the Depositor, the Initial Purchaser, the Certificate Administrator, the Trustee, the Master Servicer, the Certificate Registrar, the Operating Advisor and the Special Servicer against any liability that may result if such transfer is not exempt from registration and/or qualification under the Securities Act or other applicable federal and state securities laws or is not made in accordance with such federal and state laws or in accordance with the foregoing provisions of this paragraph. By its acceptance of an Excess Servicing Fee Right, the holder thereof shall be deemed to have agreed not to use or disclose such information in any manner that could result in a violation of any provision of the Securities Act or other applicable securities laws or that would require registration of such Excess Servicing Fee Right or any Certificate pursuant to the Securities Act. From time to time following any transfer, sale, pledge or assignment of an Excess Servicing Fee Right, the Master Servicer with respect to the Whole Loan or successor REO Loan with respect thereto to which the Excess Servicing Fee Right relates, shall pay, out of each amount paid to the Master Servicer as Servicing Fee with respect to the Whole Loan or REO Loan, as the case may be, the related Excess Servicing Fees to the holder of such Excess Servicing Fee Right within one Business Day following the payment of such Servicing Fee to the Master Servicer, in each case in accordance with payment instructions provided by such holder in writing to the Master Servicer. The holder of an Excess Servicing Fee Right shall not have any rights under this Agreement except as set forth in the preceding sentences of this paragraph. None of the Certificate Administrator, the Certificate Registrar, the

 

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Operating Advisor, the Depositor, the Special Servicer or the Trustee shall have any obligation whatsoever regarding payment of the Excess Servicing Fee or the assignment or transfer of the Excess Servicing Fee Right.

 

As compensation for its activities hereunder on each Distribution Date, the Certificate Administrator shall be entitled with respect to the Trust Loan to its portion of the Trustee/Certificate Administrator Fee, which shall be payable from amounts on deposit in the Lower-Tier Distribution Account. The Certificate Administrator shall pay the Trustee the Trustee’s portion of the Trustee/Certificate Administrator Fee and the routine fees of the Certificate Registrar, the Paying Agent and the Authenticating Agent. The Certificate Administrator’s and the Trustee’s rights to the Trustee/Certificate Administrator Fee may not be transferred in whole or in part except in connection with the transfer of all of its respective responsibilities and obligations under this Agreement.

 

Except as otherwise provided herein, the Master Servicer shall pay all of its overhead expenses incurred by it in connection with its servicing activities hereunder, including all fees of any Sub-Servicers retained by it. Except as otherwise provided herein, the Trustee and the Certificate Administrator shall each pay all expenses incurred by it in connection with its activities hereunder.

 

(b)       As compensation for its activities hereunder, the Special Servicer shall be entitled with respect to a Specially Serviced Loan or an REO Loan to the Special Servicing Compensation, which shall be payable from amounts on deposit in the Collection Account as set forth in Section 3.06 of this Agreement. The Special Servicer’s rights to the Special Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer’s responsibilities and obligations under this Agreement. In addition, the Special Servicer shall be entitled to receive, as Special Servicing Compensation, to the extent permitted by applicable law and the Loan Documents, (i) any late payment charges and any Net Default Interest and any other default charges and Penalty Charges collected by the Master Servicer or the Special Servicer during a Collection Period accrued on a Specially Serviced Loan remaining after application thereof during such Collection Period (subject to the terms of the Co-Lender Agreement) to pay the Advance Interest Amount relating to such Specially Serviced Loan and any unreimbursed Additional Trust Fund Expenses (including Special Servicing Fees, Workout Fees and Liquidation Fees) incurred during or prior to such Collection Period on a Specially Serviced Loan (but not NSF check fees and the like, which shall be paid to the Master Servicer) as further described below in subsection (c), (ii) 50% of any Assumption Fees, consent fees (or similar fees) relating to the transactions referred to in Section 3.09(b) of this Agreement, Modification Fees (and other similar fees) and loan service transaction fees, beneficiary statement charges or similar items with respect to the Whole Loan if it is a Performing Loan, when the approval from the Special Servicer is required (and excluding any Prepayment Charges), (iii) any interest or other income earned on deposits in the REO Accounts and (iv) 100% of any Assumption Fees, assumption application fees, consent fees (or similar fees) relating to the transactions referred to in Section 3.09(b) of this Agreement, Modification Fees (and other similar fees), loan service transaction fees, beneficiary statement charges, demand fees or similar items relating to a Specially Serviced Loan or REO Loan. For the avoidance of doubt, with respect to any fee split between the Master Servicer and the Special Servicer pursuant to the terms of Section 3.12(a) or (b) hereof, the Master Servicer and the Special

 

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Servicer shall each have the right, but not any obligation, to reduce or elect not to charge its respective percentage interest in any such fee; provided, however (x) neither the Master Servicer nor the Special Servicer shall have the right to reduce or elect not to charge the percentage interest of any fee due to the other and (y) to the extent either of the Master Servicer or the Special Servicer exercises its right to reduce or elect not to charge its respective percentage interest in any fee, the party that reduced or elected not to charge such fee shall not have any right to share in any portion of the other party’s fee. For the avoidance of doubt, if the Master Servicer decides not to charge any fee, the Special Servicer shall still be entitled to charge the portion of the related fee the Special Servicer would have been entitled to if the Master Servicer had charged a fee and the Master Servicer shall not be entitled to any of such fee charged by the Special Servicer.

 

Except as otherwise provided herein, the Special Servicer shall pay all expenses incurred by it in connection with its servicing activities hereunder, including all fees of any Sub-Servicers retained by it.

 

(c)        In addition, a Workout Fee will be payable to the Special Servicer with respect to the Whole Loan if it ceases to be a Specially Serviced Loan pursuant to the definition thereof. The Workout Fee will be payable out of each collection of interest and principal (including scheduled payments, prepayments, Balloon Payments and payments at maturity) received on the Whole Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee will cease to be payable if the Whole Loan again becomes a Specially Serviced Loan or if the Mortgaged Property becomes an REO Property; provided that a new Workout Fee will become payable if and when the Whole Loan again ceases to be a Specially Serviced Loan. If the Special Servicer is terminated (other than for cause) or resigns with respect to any or all of its servicing duties, it shall retain the right to receive any and all Workout Fees payable with respect to the Whole Loan if the Whole Loan ceases to be a Specially Serviced Loan during the period that it had responsibility for servicing the Specially Serviced Loan or had ceased being a Specially Serviced Loan (or the Specially Serviced Loan had not yet become a Corrected Mortgage Loan because as of the time that the Special Servicer is terminated, the Borrower has not made three consecutive monthly debt service payments and subsequently, the Specially Serviced Loan becomes a Corrected Mortgage Loan) at the time of such termination or resignation (and the successor Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such loan ceases to be payable in accordance with the preceding sentence.

 

A Liquidation Fee will be payable to the Special Servicer with respect to (i) the Trust Loan if repurchased by the Trust Loan Seller after the applicable time period (including any applicable extension thereof) in Section 2.03(e) of this Agreement, (ii) a Specially Serviced Loan as to which the Special Servicer obtains a full, partial or discounted payoff from the Borrower and (iii) except as otherwise described below, with respect to a Specially Serviced Loan or REO Property as to which the Special Servicer recovered any Liquidation Proceeds. As to the Trust Loan repurchased by the Trust Loan Seller after the applicable time period (including any applicable extension thereof) in Section 2.03(e) of this Agreement or a Specially Serviced Loan or an REO Property, the Liquidation Fee will be payable from the related payment or proceeds. Notwithstanding anything to the contrary described above, no Liquidation Fee will be payable based on, or out of, Liquidation Proceeds to the extent set forth in the

 

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definition of “Liquidation Fee” herein. With respect to any future mezzanine debt, to the extent not prohibited by the Loan Documents, the Master Servicer or Special Servicer, as applicable, shall require that the related mezzanine intercreditor agreement provide that in the event of a purchase of the Whole Loan by the related mezzanine lender after 90 days following the first time that such holder’s option to purchase the Whole Loan becomes exercisable (provided, however, that even if the purchase occurs before such expiration the Liquidation Fee will be payable to the extent paid by, and collected from, the related borrower or the mezzanine lender), such mezzanine lender shall be required to pay a Liquidation Fee equal to the amount that the Special Servicer would otherwise be entitled to under this Agreement with respect to a liquidation of the Whole Loan (provided, however, that such Liquidation Fee shall in all circumstances be payable by the related mezzanine lender and shall not, under any circumstances, be payable out of the Trust unless the Master Servicer fails to require the related mezzanine intercreditor agreement to require the mezzanine lender to pay such amounts in breach of its obligation to do so under this paragraph). If, however, Liquidation Proceeds are received with respect to a Specially Serviced Loan as to which the Special Servicer is properly entitled to a Workout Fee, such Workout Fee will be payable based on and out of the portion of such Liquidation Proceeds that constitute principal and/or interest. Notwithstanding anything herein to the contrary, the Special Servicer shall only be entitled to receive a Liquidation Fee or a Workout Fee, but not both, with respect to Liquidation Proceeds received on the Whole Loan or a Specially Serviced Loan. In the event that (i) the Special Servicer resigns or has been terminated, and (ii) prior or subsequent to such resignation or termination, either (A) a Specially Serviced Loan was liquidated or modified pursuant to an action plan submitted by the initial Special Servicer or the Special Servicer has determined to grant a forbearance, or (B) a Specially Serviced Loan being monitored by the Special Servicer subsequently became a Corrected Mortgage Loan, then in either such event the Special Servicer (and not the successor special servicer) shall be paid the related Workout Fee or Liquidation Fee, as applicable.

 

The Special Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts, other than management fees in respect of the REO Property, due and owing to any of its sub servicers, any amounts due and owing to any of its Affiliates, and the premiums for any blanket insurance policy obtained by it insuring against hazard losses pursuant to Section 3.08 of this Agreement, except to the extent such premiums are reimbursable pursuant to Section 3.08 of this Agreement), if and to the extent such expenses are not expressly payable directly out of the Collection Account or the REO Account or as a Property Advance, and the Special Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement.

 

The Special Servicer and its Affiliates shall be prohibited from receiving or retaining any compensation or any other remuneration (including, without limitation, in the form of commissions, brokerage fees, rebates, or as a result of any other fee-sharing arrangement) from any Person (including, without limitation, the Trust, the Borrower, a Manager, any guarantor or indemnitor in respect of the Whole Loan and any purchaser of the Whole Loan or REO Property) in connection with the disposition, workout or foreclosure of the Whole Loan, the management or disposition of the REO Property, or the performance of any other special servicing duties under this Agreement, other than as expressly provided in this Section 3.12; provided that such prohibition shall not apply to Permitted Special Servicer/Affiliate Fees; and

 

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provided, further, that any compensation or other remuneration that the Master Servicer or Certificate Administrator is permitted to receive or retain pursuant to this Agreement in connection with its duties in such capacity as the Master Servicer or Certificate Administrator under this Agreement will not be Disclosable Special Servicer Fees.

 

(d)       In determining the compensation of the Master Servicer or Special Servicer, as applicable, with respect to Penalty Charges, on any Distribution Date, the aggregate Penalty Charges collected on the Whole Loan during the related Collection Period shall be applied (as between Default Interest and late payment charges, in the priority set forth in the definition of “Advance Interest Amount”) to reimburse (i) the Master Servicer or the Trustee for interest on Advances at the Advance Rate with respect to the Trust Loan or Whole Loan that accrued in the period that such Penalty Charges were collected and advance interest to each Companion Loan Service Provider for any debt service advance made by such party with respect to the Companion Loan that accrued in the period that such Penalty Charges were collected, (ii) the Trust Fund for all interest on Advances with respect to the Trust Loan or Whole Loan previously paid to the Master Servicer, the Trustee or to any Companion Loan Service Provider pursuant to Section 3.06(a)(vi) of this Agreement and (iii) the Trust Fund for any Additional Trust Fund Expenses (including Special Servicing Fees, Workout Fees and Liquidation Fees) with respect to the Trust Loan or the Whole Loan paid during or prior to the Collection Period that such Penalty Charges were collected and not previously paid out of Penalty Charges, and any Penalty Charges remaining thereafter shall be distributed pro rata to the Master Servicer and the Special Servicer based upon the amount of Penalty Charges the Master Servicer or the Special Servicer would otherwise have been entitled to receive during such period with respect to the Whole Loan without any such application.

 

(e)       The Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee shall be entitled to reimbursement from the Collection Account in accordance with Section 3.06 for the costs and expenses incurred by them in the performance of their respective duties under this Agreement which are “unanticipated expenses incurred by the REMIC” within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(iii). Such expenses shall include, by way of example and not by way of limitation, environmental assessments, Updated Appraisals and appraisals in connection with foreclosure, the fees and expenses of any administrative or judicial proceeding and expenses expressly identified as reimbursable in Section 3.06(a)(xv) of this Agreement. All such costs and expenses shall be treated as costs and expenses of the Lower-Tier REMIC and the Companion Loan, if applicable.

 

(f)        No provision of this Agreement or of the Certificates shall require the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee to expend or risk their own funds or otherwise incur any financial liability in the performance of any of their duties hereunder or thereunder, or in the exercise of any of their rights or powers, if, in the good faith business judgment of the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee, as the case may be, repayment of such funds would not be ultimately recoverable from late payments, Net Insurance Proceeds, Net Liquidation Proceeds, Net Condemnation Proceeds and other collections on or in respect of the Trust Loan, or from adequate indemnity from other assets comprising the Trust Fund against such risk or liability.

 

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If the Master Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor or the Trustee receives a request or inquiry from the Borrower, any Certificateholder or any other Person the response to which would, in the Master Servicer’s, the Special Servicer’s, the Certificate Administrator’s, the Operating Advisor’s or the Trustee’s good faith business judgment require the assistance of Independent legal counsel or other consultant to the Master Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor or the Trustee, the cost of which would not be an expense of the Trust Fund or the Companion Loan Holder hereunder, then the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee, as the case may be, shall not be required to take any action in response to such request or inquiry unless the Borrower, such Certificateholder, or such other Person, as applicable, makes arrangements for the payment of the Master Servicer’s, the Special Servicer’s, the Certificate Administrator’s, the Operating Advisor’s or the Trustee’s expenses associated with such counsel (including, without limitation, posting an advance payment for such expenses) satisfactory to the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee, as the case may be, in its sole discretion. Unless such arrangements have been made, the Master Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor or the Trustee, as the case may be, shall have no liability to any Person for the failure to respond to such request or inquiry.

 

Section 3.13 Reports to the Certificate Administrator; Collection Account Statements. (a) The Master Servicer shall deliver to the Certificate Administrator no later than 3:00 p.m. (New York City time) one Business Day prior to the Servicer Remittance Date prior to each Distribution Date, the CREFC® Loan Periodic Update File with respect to the Trust Loan for the related Distribution Date (which shall include, without limitation, the amount of Available Funds allocable to all of the Trust Loan) including information therein that states the anticipated P&I Advances for the related Distribution Date and any CREFC® License Fee Rate. The Master Servicer’s responsibilities under this Section 3.13(a) with respect to REO Loan shall be subject to the satisfaction of the Special Servicer’s obligations under Section 3.23 of this Agreement. In the event of the receipt by the Master Servicer of a Principal Prepayment or other Unscheduled Payment after a Determination Date but prior to the related Servicer Remittance Date, the Master Servicer shall be permitted to deliver to the Certificate Administrator a revised CREFC® Loan Periodic Update File by no later than 10:00 a.m. (New York time) on the Servicer Remittance Date. In connection with the delivery of any revised report, the Master Servicer shall not be required to pay the Certificate Administrator or any other party any “re-state fee” or any other fee for delivery of such revised report and shall not be required to bear any expenses or penalty charges in connection with the processing of such Principal Prepayment or Unscheduled Payment. With respect to the Companion Loan, the Master Servicer shall (no later than the time(s) that it or any portion thereof is made to the Certificate Administrator) make available to the Companion Loan Holder or, if such Companion Loan is securitized, the applicable related Other Servicer, the CREFC® Investor Reporting Package (excluding any templates) pursuant to the terms of this Agreement on a monthly basis. The Special Servicer shall provide any templates relating to the Companion Loan included in the CREFC® Investor Reporting Package and prepared by the Special Servicer pursuant to the terms hereof to the Master Servicer promptly upon reasonable request. The Master Servicer shall provide any templates relating to the Companion Loan included in the CREFC® Investor Reporting Package (with respect to templates required to be prepared by the Special Servicer pursuant to the terms hereof, to the extent received) to a related Other Servicer upon reasonable request.

 

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(b)       For so long as the Master Servicer makes deposits into or credits to and withdrawals or debits from the Collection Account, not later than 15 days after each Distribution Date, the Master Servicer shall forward to the Certificate Administrator a statement prepared by the Master Servicer setting forth the status of the Collection Account as of the close of business on the last Business Day of the Collection Period related to such Distribution Date and showing the aggregate amount of deposits into and withdrawals from the Collection Account of each category of deposit (or credit) specified in Section 3.05 of this Agreement and each category of withdrawal (or debit) specified in Section 3.06 of this Agreement for the related Collection Period, in each case for the Trust Loan. The Trustee and the Certificate Administrator and its agents and attorneys may at any time during normal business hours, upon reasonable notice, inspect and copy the books, records and accounts of the Master Servicer solely relating to the Trust Loan and the performance of its duties hereunder.

 

(c)       Beginning in November 2016, no later than 4:00 p.m. (New York City time) on each Servicer Remittance Date, the Master Servicer shall deliver or cause to be delivered to the Certificate Administrator (which shall promptly post such report to the Certificate Administrator’s Website pursuant to Section 4.02(b) of this Agreement), the Companion Loan Holder, the Operating Advisor and the 17g-5 Information Provider (which shall post such reports to the 17g-5 Information Provider’s website) the following reports (in electronic form) with respect to the Trust Loan (and, if applicable, the REO Property), providing the required information as of the immediately preceding Determination Date: (i) to the extent the Master Servicer has received the most recent CREFC® Special Servicer Loan File from the Special Servicer at the time required, the most recent CREFC® Delinquent Loan Status Report, CREFC® Historical Loan Modification and Corrected Mortgage Loan Report, the CREFC® Loan Setup File (with respect to the first Distribution Date) and CREFC® REO Status Report received from such Special Servicer, (ii) the most recent CREFC® Property File, CREFC® Financial File, CREFC® Comparative Financial Status Report and the CREFC® Loan Level Reserve/LOC Report (in each case incorporating the data required to be included in the CREFC® Special Servicer Loan File), (iii) the CREFC® Servicer Watch List with information that is current as of such Determination Date and (iv) the CREFC® Advance Recovery Report.

 

The information that pertains to a Specially Serviced Loan or REO Property reflected in such reports shall be based solely upon the reports delivered by the Special Servicer to the Master Servicer (other than information as to which the Master Servicer has the primary responsibility to generate) at least two Business Days prior to the related Determination Date in the form required by Section 3.13(f) of this Agreement or shall be provided by means of such reports so delivered by the Special Servicer to the Master Servicer in the form so required. In the absence of manifest error, the Master Servicer shall be entitled to conclusively rely upon, without investigation or inquiry, the information and reports delivered to it by the Special Servicer, and the Certificate Administrator shall be entitled to conclusively rely upon the Master Servicer’s reports and the Special Servicer’s reports and any information provided by the Certificate Administrator or the Trustee without any duty or obligation to recompute, verify or recalculate any of the amounts and other information stated therein.

 

(d)       The Master Servicer shall deliver or cause to be delivered to the Trustee, the Certificate Administrator, the Companion Loan Holder, the Initial Purchaser, the Operating Advisor and the 17g-5 Information Provider (which shall promptly post such materials to the

 

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17g-5 Information Provider’s Website), the following materials, in each case to the extent that such materials or the information on which they are based have been received by the Master Servicer with respect to the Trust Loan, which shall be made available by the Certificate Administrator on the Certificate Administrator’s Website:

 

(i)         Within 45 days of receipt by the Master Servicer (or within 60 days of receipt by the Special Servicer with respect to a Specially Serviced Loan or REO Property pursuant to Section 3.13(g)(i)) of any annual year-end operating statements beginning in 2017, with respect to the Mortgaged Property or REO Property (to the extent prepared by and received from the Special Servicer in the case of a Specially Serviced Loan or REO Property), a CREFC® Operating Statement Analysis Report, together with copies of the related operating statements and rent rolls (but only to the extent the Borrower is required by the Mortgage to deliver, or otherwise agrees to provide such information and, with respect to operating statements and rent rolls for such Specially Serviced Loan or REO Property, only to the extent received by the Special Servicer) for the current trailing 12 months, if available, or year-to-date. The Master Servicer (or the Special Servicer in the case of a Specially Serviced Loan or REO Property) shall use efforts consistent with the Servicing Standard to obtain said annual and other periodic operating statements and related rent rolls, which efforts shall include a letter sent to the Borrower (followed up with telephone calls), requesting such annual and other periodic operating statements and related rent rolls until they are received to the extent such action is consistent with applicable law and the terms of the Whole Loan. Upon receipt of such annual and other periodic operating statements (including year-to-date statements) and related rent rolls the Master Servicer shall promptly update the CREFC® Operating Statement Analysis Report, provided, however, that any analysis or update with respect to year end or the first calendar quarter of each year will not be required to the extent such analysis or update is not required under the then current CREFC® guidelines.

 

(ii)        Within 45 days after receipt by the Master Servicer (or within 60 days of receipt by the Special Servicer in the case of a Specially Serviced Loan or REO Property pursuant to Section 3.13(g)(ii)) of any annual year-end operating statements beginning in 2017, with respect to the Mortgaged Property or REO Property (to the extent prepared by and received from the Special Servicer in the case of a Specially Serviced Loan or REO Property), a CREFC® NOI Adjustment Worksheet for the Mortgaged Property (with the annual year-end operating statements attached thereto as an exhibit). The Master Servicer will use the “Normalized” column from the CREFC® NOI Adjustment Worksheet to update the full year-end data on any CREFC® Operating Statement Analysis Report and will use any operating statements received with respect to the Mortgaged Property (other than an REO Property or the Mortgaged Property for so long as the Whole Loan is a Specially Serviced Loan) to update the CREFC® Operating Statement Analysis Report for the Mortgaged Property, provided, however, that any analysis or update with respect to year end or the first calendar quarter of each year will not be required to the extent such analysis or update is not required under the then current CREFC® guidelines.

 

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Upon request for receipt of any such items from any Rating Agency, the Master Servicer shall forward such items to the 17g-5 Information Provider (who shall promptly post such items to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement).

 

In addition, the Master Servicer shall deliver the CREFC® Operating Statement Analysis Report and CREFC® NOI Adjustment Worksheet for the Mortgaged Property on a monthly basis; provided that the Master Servicer shall have no obligation to update such reports except as required under this Agreement and no analysis or update shall be required to the extent such analysis or update is not required to be provided under the then-current applicable CREFC® guidelines.

 

The Master Servicer shall maintain one CREFC® Operating Statement Analysis Report for the Mortgaged Property or REO Property (to the extent prepared by and received from the Special Servicer in the case of an REO Property or the Mortgaged Property for so long as the Whole Loan is a Specially Serviced Loan) relating to the Whole Loan. The CREFC® Operating Statement Analysis Report for the Mortgaged Property (other than an REO Property or the Mortgaged Property while the Whole Loan is a Specially Serviced Loan) is to be updated with trailing 12-month information, as available (commencing with the quarter ending in December 2016), or year-to-date information until 12-month trailing information is available by the Master Servicer and such updated report shall be delivered to the Trustee, the Certificate Administrator, the Operating Advisor and the Companion Loan Holder in the calendar month following receipt by the Master Servicer of such updated trailing or year-to-date operating statements and related rent rolls for the Mortgaged Property.

 

The Special Servicer shall pursuant to Section 3.13(d) of this Agreement deliver to the Master Servicer the information required of it pursuant to this Section 3.13(d) with respect to a Specially Serviced Loan or REO Loan.

 

(e)       In connection with their servicing of the Whole Loan, the Master Servicer and the Special Servicer, as applicable, shall provide to each other and to the Trustee and the Certificate Administrator, written notice of any event that comes to their knowledge with respect to the Whole Loan or REO Property that the Master Servicer or the Special Servicer, respectively, determines, in accordance with the Servicing Standard, would have a material adverse effect on the Whole Loan or REO Property, which notice shall include an explanation as to the reason for such material adverse effect.

 

(f)        On each Determination Date, the Special Servicer shall deliver, or cause to be delivered, to the Master Servicer and, upon the request of any of the Trustee, the Certificate Administrator, the Operating Advisor or the Depositor, to such requesting party, the CREFC® Special Servicer Loan File with respect to the Specially Serviced Loan (and, if applicable, the REO Property), providing the required information as of the Business Day prior to such Determination Date (or, upon the reasonable request of the Master Servicer, data files in a form acceptable to the Master Servicer), which CREFC® Special Servicer Loan File shall include data, to enable the Master Servicer to produce the CREFC® Supplemental Servicer Reports. In addition, at least two Business Days prior to each Servicer Remittance Date, the Special Servicer shall deliver the CREFC® Special Servicer Loan File to the 17g-5 Information Provider (which

 

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shall promptly post such item to the 17g-5 Information Provider’s Website). Such reports or data shall be presented in writing and in an electronic format acceptable to the Master Servicer.

 

(g)       The Special Servicer shall deliver or cause to be delivered to the Master Servicer and, upon the request of any of the Trustee, the Certificate Administrator, the Operating Advisor, the Depositor or any Rating Agency, to such requesting party, without charge, the following materials for a Specially Serviced Loan, in each case to the extent that such materials or the information on which they are based have been received by the Special Servicer:

 

(i)        Beginning in 2017, within 60 days of receipt by the Special Servicer of any annual operating statements with respect to a Specially Serviced Loan, a CREFC® Operating Statement Analysis Report for the Mortgaged Property or REO Property as of the end of the preceding calendar year, together with copies of the operating statements and rent rolls for the Mortgaged Property or REO Property as of the end of the preceding calendar year (but only to the extent the Borrower is required by the Mortgage to deliver, or otherwise agrees to provide, such information) and for the current trailing 12 months, if available, or year-to-date. The Special Servicer shall use commercially reasonable efforts to obtain said annual and other periodic operating statements and related rent rolls with respect to the Mortgaged Property for so long as the Whole Loan is a Specially Serviced Loan or REO Property, which efforts shall include a letter sent to the Borrower or other appropriate party each quarter (followed up with telephone calls) requesting such annual and other periodic operating statements until they are received, provided, however, that any analysis or update with respect to year end or the first calendar quarter of each year will not be required to the extent such analysis or update is not required under the then current CREFC® guidelines.

 

(ii)       Beginning in 2017, within 60 days of receipt by the Special Servicer of any annual operating statements with respect to the Mortgaged Property for so long as the Whole Loan is a Specially Serviced Loan, a CREFC® NOI Adjustment Worksheet for the Mortgaged Property or REO Property (with the annual operating statements attached thereto as an exhibit); provided, however, that, with the consent of the Master Servicer, the Special Servicer may instead provide data files in a form acceptable to the Master Servicer. The Special Servicer will use the “Normalized” column from the CREFC® NOI Adjustment Worksheet to update the full year-end data on any CREFC® Operating Statement Analysis Report and will use any operating statements received with respect to the Mortgaged Property for so long as the Whole Loan is a Specially Serviced Loan or an REO Property to update the CREFC® Operating Statement Analysis Report for the Mortgaged Property, provided, however, that any analysis or update with respect to year end or the first calendar quarter of each year will not be required to the extent such analysis or update is not required under the then current CREFC® guidelines.

 

Upon request for receipt of any such items from any Rating Agency, the Special Servicer shall forward such items to the 17g-5 Information Provider (who shall promptly post such items to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement).

 

The Special Servicer shall maintain one CREFC® Operating Statement Analysis Report for the Mortgaged Property for so long as the Whole Loan is a Specially Serviced Loan

 

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or the Mortgaged Property is an REO Property. The CREFC® Operating Statement Analysis Report for the Mortgaged Property or REO Property is to be updated by the Special Servicer and such updated report delivered to the Master Servicer within 45 days after receipt by the Special Servicer of updated operating statements and related rent rolls for the Mortgaged Property when the Whole Loan is a Specially Serviced Loan or the Mortgaged Property is an REO Property; provided, that the Special Servicer may instead provide data files in an electronic form acceptable to the Special Servicer. The Special Servicer shall provide each such report to the Master Servicer in the then applicable CREFC® format.

 

(h)       If the Master Servicer or the Special Servicer, as applicable, is required to deliver any statement, report or information under any provision of this Agreement (including Section 3.14), the Master Servicer or the Special Servicer, as the case may be, may satisfy such obligation by (x) delivering such statement, report or information in a commonly used electronic format or (y) making such statement, report or information available on the Master Servicer’s Website, unless this Agreement expressly specifies a particular method of delivery; provided that all reports required to be delivered to the Certificate Administrator shall be delivered in accordance with clause (x) or (y).

 

(i)        The Master Servicer may, but is not required to, make any of the reports or files it delivers pursuant to this Section 3.13 available each month on the Master Servicer’s Website only with the use of a password, in which case the Master Servicer shall provide such password to (i) the other parties to this Agreement, who by their acceptance of such password shall be deemed to have agreed not to disclose such password to any other Person and (ii) each Certificateholder and prospective Certificateholder who requests such password, provided that any such Certificateholder or prospective Certificateholder, as the case may be, and has delivered an Investor Certification to the Trustee, the Certificate Administrator and the Master Servicer. In connection with providing access to the Master Servicer’s Website, the Master Servicer may require registration and the acceptance of a disclaimer and otherwise (subject to the preceding sentence) adopt reasonable rules and procedures, which may include, to the extent the Master Servicer deems necessary or appropriate, conditioning access on execution of an agreement governing the availability, use and disclosure of such information, and which may provide indemnification to the Master Servicer for any liability or damage that may arise therefrom.

 

(j)        With respect to each Collection Period, the Special Servicer shall deliver or cause to be delivered to the Master Servicer, without charge and within two Business Days following the related Determination Date, an electronic report which may include html, word or excel compatible format, clean and searchable pdf format or such other format as mutually agreeable between the Certificate Administrator and the Special Servicer that discloses and contains an itemized listing of any Disclosable Special Servicer Fees received by the Special Servicer or any of its Affiliates during the related Collection Period (and the Master Servicer, if it has received such information, shall forward such information to the Certificate Administrator no later than the Servicer Remittance Date). Such report to the Certificate Administrator may omit any information that has previously been delivered to the Certificate Administrator by the Master Servicer or the Special Servicer; provided that the Certificate Administrator shall include all such related information in the Distribution Date Statement regardless of how such information was conveyed to it.

 

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Section 3.14 Access to Certain Documentation. (a) The Master Servicer and Special Servicer, as applicable, shall provide to any Certificateholders and the Companion Loan Holder (and any registered holder or beneficial holder of Companion Loan Securities) that are federally insured financial institutions, the Operating Advisor (but only during an Operating Advisor Consultation Period), the Directing Holder (but only during a Subordinate Control Period or a Subordinate Consultation Period), the Federal Reserve Board, the FDIC and the OTS and the supervisory agents and examiners of such boards and such corporations, and any other federal or state banking or insurance regulatory authority that may exercise authority over any Certificateholder or Companion Loan Holder (or any registered holder or beneficial holder of Serviced Companion Loan Securities) is subject, access to the documentation regarding the Trust Loan required by applicable regulations of the Federal Reserve Board, FDIC, OTS or any such federal or state banking or regulatory authority, such access being afforded without charge but only upon reasonable written request and during normal business hours at the offices of the Master Servicer or Special Servicer, as applicable. In addition, upon reasonable prior written notice to the Master Servicer or the Special Servicer, as the case may be, the Trustee, the Certificate Administrator, the Operating Advisor (but only during an Operating Advisor Consultation Period), the Depositor or their accountants or other representatives shall have reasonable access to review the documents, correspondence and records in the possession of the Master Servicer or the Special Servicer, as the case may be, as they relate to the Mortgaged Property and any REO Property during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be. Nothing in this Section 3.14 shall detract from the obligation of the Master Servicer and Special Servicer to observe any applicable law prohibiting disclosure of information with respect to the Borrower, and the failure of the Master Servicer and Special Servicer to provide access as provided in this Section 3.14 as a result of such obligation shall not constitute a breach of this Section 3.14.

 

(b)       In connection with providing or granting any information or access pursuant to the prior paragraph to a Certificateholder, Companion Loan Holder (or any registered holder or beneficial owner of Companion Loan Securities) or any regulatory authority that may exercise authority over a Certificateholder or Companion Loan Holder (or any registered holder or beneficial owner of Companion Loan Securities), the Master Servicer and the Special Servicer may each require payment from such Certificateholder or Companion Loan Holder (or any registered holder or beneficial owner of Companion Loan Securities) of a sum sufficient to cover the reasonable costs and expenses of providing such information or access, including copy charges and reasonable fees for employee time and for space; provided that no charge may be made if such information or access was required to be given or made available under applicable law. In connection with providing Certificateholders or Companion Loan Holder (or any registered holder or beneficial owner of Companion Loan Securities) access to the information described in the preceding paragraph the Master Servicer and the Special Servicer, as applicable, may require (prior to affording such access) a written confirmation executed by the requesting Person substantially in such form as may be reasonably acceptable to the Master Servicer or the Special Servicer, as the case may be, generally to the effect that such Person is a Holder of Certificates or a beneficial holder of Book-Entry Certificates or Companion Loan Holder (or any registered holder or beneficial owner of Companion Loan Securities) or a regulator or governmental body and will keep such information confidential.

 

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(c)       Upon the reasonable request of any Certificateholder or Companion Loan Holder (or any registered holder or beneficial owner of Companion Loan Securities) identified to the Master Servicer to the Master Servicer’s reasonable satisfaction, the Master Servicer may provide (or forward electronically) (at the expense of such Certificateholder or Companion Loan Holder or registered holder or beneficial owner of Companion Loan Securities) copies of any appraisals, operating statements, rent rolls and financial statements obtained by the Master Servicer; provided that, in connection therewith, the Master Servicer may require a written confirmation executed by the requesting Person substantially in such form as may be reasonably acceptable to the Master Servicer, generally to the effect that such Person is a Holder of Certificates or Companion Loan Securities (or any registered holder or beneficial owner of Companion Loan Securities) or a beneficial holder of Book-Entry Certificates or a regulator or a governmental body and will keep such information confidential.

 

(d)       The 17g-5 Information Provider shall make available solely to the Depositor and to any NRSRO that delivers an NRSRO Certification to the 17g-5 Information Provider the following items to the extent such items are delivered to it via electronic mail at 17g5informationprovider@wellsfargo.com (or such other address as the 17g-5 Information Provider shall specify by written notice to the other parties hereto) in an electronic format readable and uploadable (that is not locked or corrupted) on the 17g-5 Information Provider’s system, specifically with a subject reference of “COMM 2016-667M” and an identification of the type of information being provided in the body of such electronic mail; or via any alternative electronic mail address following notice to the parties hereto or any other delivery method established or approved by the 17g-5 Information Provider if or as may be necessary or beneficial (provided, however, if such information is not in electronic format readable and uploadable (that is not locked or corrupted), then the 17g-5 Information Provider shall immediately notify the applicable delivering party thereof, whereupon such party shall promptly deliver the subject information in such format):

 

(i)        any waivers delivered to the 17g-5 Information Provider pursuant to Section 3.09 of this Agreement;

 

(ii)       any Officer’s Certificate supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance delivered to the 17g-5 Information Provider pursuant to Section 3.21(d) or Section 4.07(d) of this Agreement and notice of determination not to refrain from reimbursement of all Nonrecoverable Advances;

 

(iii)      any Asset Status Report delivered by the Special Servicer pursuant to Section 3.23(e) of this Agreement;

 

(iv)      any environmental assessments delivered by the Special Servicer pursuant to Section 3.10(g) of this Agreement;

 

(v)       any annual statements as to compliance and related Officer’s Certificates delivered pursuant to Section 11.07 and Section 11.08 of this Agreement;

 

(vi)      any annual independent public accountants’ attestation reports delivered pursuant to Section 11.09 of this Agreement;

 

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(vii)     any Appraisals delivered to the 17g-5 Information Provider pursuant to Section 3.10 of this Agreement;

 

(viii)    any notice to the Rating Agencies relating to the Special Servicer’s determination to take action without receiving a No Downgrade Confirmation from any Rating Agency as set forth in the definition of “No Downgrade Confirmation” pursuant to Section 3.30 of this Agreement;

 

(ix)       copies of any questions or requests submitted by the Rating Agencies directed toward the Master Servicer, Special Servicer, Certificate Administrator or Trustee;

 

(x)        any requests for a No Downgrade Confirmation that are delivered to the 17g-5 Information Provider pursuant to Section 3.30 of this Agreement;

 

(xi)       any notice of resignation of the Trustee or Certificate Administrator and any notice of the acceptance of appointment by the successor Trustee or successor Certificate Administrator pursuant to Section 8.07 or Section 8.08, as applicable, of this Agreement;

 

(xii)      any notice of resignation or assignment of the rights of the Master Servicer or the Special Servicer pursuant to Section 6.04 of this Agreement;

 

(xiii)     any notice of Servicer Termination Event or termination of the Master Servicer or the Special Servicer delivered pursuant to Section 7.03 of this Agreement;

 

(xiv)     any notice of the merger or consolidation of the Certificate Administrator or the Trustee pursuant to Section 8.09 of this Agreement;

 

(xv)      any notice of the merger or consolidation of the Master Servicer, the Special Servicer or the Operating Advisor pursuant to Section 6.02 of this Agreement;

 

(xvi)     any notice of any amendment that modifies the procedures herein relating to Exchange Act Rule 17g-5 pursuant to Section 10.08 of this Agreement;

 

(xvii)    any notice or other information provided by the Master Servicer pursuant to Section 10.07 of this Agreement;

 

(xviii)   any summary of oral communication with the Rating Agencies delivered to the 17g-5 Information Provider pursuant to Section 3.14(f) of this Agreement; provided that the summary of such oral communication shall not attribute which Rating Agency the communication was with;

 

(xix)      the Rating Agency Q&A Forum and Document Request Tool; and

 

(xx)       such information as is delivered to the 17g-5 Information Provider by the Depositor in mutually agreeable electronic format within fifteen (15) days of the Closing Date.

 

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The foregoing information shall be made available by the 17g-5 Information Provider on the 17g-5 Information Provider’s Website (a link to which shall be provided on the Depositor’s website at www.intralinks.com or such other website as the Depositor may notify the parties hereto in writing). Information will be posted on the same Business Day of receipt provided that such information is received by 2:00 p.m. (eastern time) or, if received after 2:00 p.m., on the next Business Day by 12:00 p.m. (eastern time). The 17g-5 Information Provider shall have no obligation or duty to verify, confirm or otherwise determine whether the information being delivered is accurate, complete, conforms to the transaction, or otherwise is or is not anything other than what it purports to be or whether such information (other than (solely with respect to the 17g-5 Information Provider’s obligation to post such information) the information set forth in clauses (i) through (xix) above) is required to be posted on the 17g-5 Information Provider’s Website pursuant to this Agreement or Rule 17g-5. In the event that any information is delivered or posted in error, the 17g-5 Information Provider may remove it from the 17g-5 Information Provider’s Website. The Certificate Administrator and the 17g-5 Information Provider have not obtained and shall not be deemed to have obtained actual knowledge of any information only by receipt and posting to the 17g-5 Information Provider’s Website. Access will be provided by the 17g-5 Information Provider to the Rating Agencies, and to the NRSROs upon receipt of an NRSRO Certification in the form of Exhibit O hereto (which certification may be submitted electronically via the 17g-5 Information Provider’s Website) on the same Business Day as the request if such certification is submitted by 2:00 p.m., and if such certification is submitted after 2:00 p.m., on the following Business Day. Questions regarding delivery of information to the 17g-5 Information Provider may be directed to 17g5informationprovider@wellsfargo.com (or such other address as the 17g-5 Information Provider shall specify by written notice to the other parties hereto).

 

Upon delivery by the Depositor to the 17g-5 Information Provider of information designated by the Depositor as pre-closing information from the Depositor’s 17g-5 Website (the “Pre-close Information”), the 17g-5 Information Provider shall make such information available only to the Depositor and to NRSROs via the 17g-5 Information Provider’s Website pursuant to this Section 3.14(d). Such information shall be provided to the 17g-5 Information Provider via electronic media and delivered to the 17g-5 Information Provider as mutually agreed. The Depositor shall not be entitled to direct the 17g-5 Information Provider to provide access to the Pre-close Information or any other information on the 17g-5 Information Provider’s Website to any designee or third party. The Master Servicer or the Special Servicer, as applicable, may, but shall not be obligated to, provide information to the 17g-5 Information Provider that is neither specifically required hereunder, nor required by any Rating Agency; however, the 17g-5 Information Provider shall post such information provided to it pursuant to the terms hereof.

 

The 17g-5 Information Provider shall notify (i) any party that delivers information to the 17g-5 Information Provider under this Agreement that such information was received and (ii) any party that delivers information to the 17g-5 Information Provider under this Agreement and each Person that has signed up for access to the 17g-5 Information Provider’s Website in respect of the transaction governed by this Agreement each time an additional document is posted to the 17g-5 Information Provider’s Website and such notice shall specifically identify such document. The 17g-5 Information Provider shall send such notice to such Persons to the email address that has been provided by and is used by such Person for the purpose of accessing the 17g-5 Information Provider’s Website, including a general email address if such general

 

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email address has been provided to the 17g-5 Information Provider in connection with a completed NRSRO Certification in the form of Exhibit O hereto. In addition to notifying each Person that has been signed up for access to the 17g-5 Information Provider’s Website when an additional document has been posted, the 17g-5 Information Provider shall automatically provide such notifications to the following email addresses: cmbs.surveillance@dbrs.com, cmbs_info_17g5@standardandpoors.com and cmbssurveillance@moodys.com.

 

The 17g-5 Information Provider shall make available, only to the Rating Agencies and NRSROs, the Rating Agency Q&A Forum and Document Request Tool. The “Rating Agency Q&A Forum and Document Request Tool” shall be a service available on the 17g-5 Information Provider’s Website, where Rating Agencies and NRSROs may (i) submit Inquiries to the Certificate Administrator relating to the Distribution Date Statement, or submit Inquiries to the Master Servicer or the Special Servicer, as applicable, relating to the reports being made available pursuant to this Section 3.14(d), the Whole Loan or the Mortgaged Property or submit inquiries to the Operating Advisor relating to the Operating Advisor Annual Reports or actions by the Master Servicer or the Special Servicer as to which the Operating Advisor has consultation rights pursuant to Section 3.32, whether or not referenced in such Operating Advisor Annual Report, (ii) view Inquiries that have been previously submitted and answered, together with the answers thereto and (iii) submit requests for loan-level reports and information. Upon receipt of an Inquiry for the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer, the 17g-5 Information Provider shall forward the Inquiry to the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer, as applicable, in each case within a commercially reasonable period following receipt thereof. Following receipt of an Inquiry or request relating to the subject matters described in clauses (i) or (iii) above, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer, as applicable, unless it determines not to answer such Inquiry as provided below, shall reply to the Inquiry, which reply of the Certificate Administrator, Operating Advisor, Master Servicer or Special Servicer shall be by email to the 17g-5 Information Provider. The 17g-5 Information Provider shall post (within a commercially reasonable period following preparation or receipt of such answer, as the case may be) such Inquiry and the related answer (or reports, as applicable) to the 17g-5 Information Provider’s Website. Any report posted by the 17g-5 Information Provider in response to a request may be posted on a page accessible by a link on the 17g-5 Information Provider’s Website. If the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer determines, in its respective sole discretion, that (i) the Inquiry is beyond the scope outlined above, (ii) answering any Inquiry would be in violation of applicable law, the Servicing Standard, this Agreement or the applicable Loan Documents, (iii) answering any Inquiry would or is reasonably expected to result in a waiver of an attorney-client privilege or the disclosure of attorney work product or is not otherwise advisable to answer or (iv)(A) answering any Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer, as applicable, and (B) the Certificate Administrator the Operating Advisor, the Master Servicer or the Special Servicer, as applicable, determines in accordance with the Servicing Standard (or in good faith, in the case of the Certificate Administrator or the Operating Advisor) that the performance of such duties or the payment of such costs and expenses is beyond the scope of its duties in its capacity as Certificate Administrator, the Operating Advisor, Master Servicer or Special Servicer, as applicable, under this Agreement, it shall not be required to answer such

 

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Inquiry and, in the case of the Certificate Administrator, the Operating Advisor, Master Servicer or the Special Servicer, shall promptly notify the 17g-5 Information Provider, and the 17g-5 Information Provider shall post such Inquiry on the Rating Agency Q&A Forum and Document Request Tool together with a statement that such Inquiry was not answered. Answers posted on the Rating Agency Q&A Forum and Document Request Tool will be attributable only to the respondent, and shall not be deemed to be answers from any of the Depositor, the Initial Purchaser, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee or any of their respective Affiliates and no such party shall have any responsibility or liability for the content of any such information. The 17g-5 Information Provider shall not be required to post to the 17g-5 Information Provider’s Website any Inquiry or answer thereto that the 17g-5 Information Provider determines, in its sole discretion, is administrative or ministerial in nature. The Rating Agency Q&A Forum and Document Request Tool will not reflect questions, answers and other communications between the 17g-5 Information Provider and any Person which are not submitted via the 17g-5 Information Provider’s Website.

 

In connection with providing access to the Certificate Administrator’s Website and the 17g-5 Information Provider’s Website, the Certificate Administrator and/or the 17g-5 Information Provider may require registration and the acceptance of a disclaimer. The Certificate Administrator and the 17g-5 Information Provider, as the case may be, shall not be liable for the dissemination of information in accordance with the terms of this Agreement, make no representations or warranties as to the accuracy or completeness of such information being made available, and assume no responsibility for such information; provided that it is acknowledged and agreed that the 17g-5 Information Provider shall not be charged with knowledge of any of the contents of such information solely by virtue of its compliance with its obligations to post such information to the 17g-5 Information Provider’s Website. The 17g-5 Information Provider shall not be liable for its failure to make any information available to the NRSROs unless such information was delivered to the 17g-5 Information Provider at the email address set forth herein (or other form of electronic delivery reasonably acceptable to the 17g-5 Information Provider and Master Servicer or Special Servicer, as applicable) in an electronic format readable and uploadable (that is not locked or corrupted) on the 17g-5 Information Provider’s system, with a subject heading of “COMM 2016-667M” and sufficient detail to indicate that such information is required to be posted on the 17g-5 Information Provider’s Website; provided, however, that if such information is not in electronic format readable and uploadable (that is not locked or corrupted), then the 17g-5 Information Provider shall immediately notify the applicable delivering party thereof, whereupon such party shall promptly deliver the subject information in such format.

 

The 17g-5 Information Provider shall not be responsible or have any liability for any act, omission or delay attributable to the failure of any other party to this Agreement to timely deliver information to be posted on the 17g-5 Information Provider’s Website or for any errors or defects in the information supplied by any such party. Neither the Certificate Administrator nor the 17g-5 Information Provider has obtained and neither shall be deemed to have obtained actual knowledge of any information solely by receipt or posting to the Certificate Administrator’s Website or the 17g-5 Information Provider’s Website, as applicable.

 

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The 17g-5 Information Provider’s obligations in respect of Rule 17g-5 or any other law or regulation related thereto shall be limited to the specific obligations contained in this Agreement and the 17g-5 Information Provider makes no representations or warranties as to the compliance of the Depositor with Rule 17g-5 or any other law or regulation related thereto.

 

(e)       Each of the Master Servicer and the Special Servicer may, in accordance with such reasonable rules and procedures as it may adopt, also deliver, produce or otherwise make available through its website or otherwise, any additional information identified in Section 3.14(d) of this Agreement relating to the Whole Loan, the Mortgaged Property or the Borrower, for review by the Depositor, the Initial Purchaser and any other Persons who deliver an Investor Certification in accordance with this Section 3.14, the Companion Loan Holder and the Rating Agencies (collectively, the “Disclosure Parties”) (only to the extent such additional information is simultaneously or previously delivered to the 17g-5 Information Provider in accordance with the provisions of Section 3.14(d) of this Agreement, which shall post such additional information on the 17g-5 Information Provider’s Website in accordance with the provisions of Section 3.14(d) of this Agreement), in each case, except to the extent doing so is prohibited by this Agreement, applicable law or by the Loan Documents. Each of the Master Servicer and the Special Servicer shall be entitled to (i) indicate the source of such information and affix thereto any disclaimer it deems appropriate in its discretion and/or (ii) require that the recipient of such information (A) except for the Depositor, enter into an Investor Certification or other confidentiality agreement acceptable to the Master Servicer or the Special Servicer, as the case may be, and (B) acknowledge that the Master Servicer or the Special Servicer may contemporaneously provide such information to any other Disclosure Party. In addition, to the extent access to such information is provided via the Master Servicer’s or the Special Servicer’s website, the Master Servicer and the Special Servicer may require registration and the acceptance of a reasonable and customary disclaimer and/or an additional or alternative agreement as to the confidential nature of such information. In connection with providing access to or copies of the information described in this Section 3.14(e) to current or prospective Certificateholders the form of confidentiality agreement used by the Master Servicer or the Special Servicer, as applicable, shall be: (i) in the case of a Certificateholder (or a licensed or registered investment advisor acting on behalf of such Certificateholder), an Investor Certification executed by the requesting Person indicating that such Person is a Holder of Certificates and will keep such information confidential (except that such Certificateholder may provide such information (x) to its auditors, legal counsel and regulators and (y) to any other Person that holds or is contemplating the purchase of any Certificate or interest therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (ii) in the case of a prospective purchaser of Certificates or interests therein (or a licensed or registered investment advisor acting on behalf of such prospective purchaser), an Investor Certification indicating that such Person is a prospective purchaser of a Certificate or an interest therein and is requesting the information for use in evaluating a possible investment in Certificates and will otherwise keep such information confidential with no further dissemination (except that such Certificateholder may provide such information to its auditors, legal counsel and regulators). In the case of a licensed or registered investment advisor acting on behalf of a current or prospective Certificateholder, the Investor Certification shall be executed and delivered by both the investment advisor and such current or prospective Certificateholder.

 

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Neither the Master Servicer nor the Special Servicer shall be liable for its dissemination of information in accordance with this Agreement or by others in violation of the terms of this Agreement. Neither the Master Servicer nor the Special Servicer shall be responsible or have any liability for the completeness or accuracy of the information delivered, produced or otherwise made available pursuant to this Section 3.14 unless (i) the Master Servicer or Special Servicer, as applicable, is the original source for such information and (ii) such failure to deliver complete and accurate information is by reason of such party’s willful misconduct, bad faith, fraud and/or negligence.

 

(f)        The Master Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor and the Trustee shall be permitted (but shall not be required) to orally communicate with the Rating Agencies regarding the Trust Loan, the Whole Loan, any Class of Certificates, the Companion Loan Holder, the Mortgaged Property or any REO Property; provided that such party summarizes the information provided to the Rating Agencies in such communication and provides the 17g-5 Information Provider with such summary in accordance with the procedures set forth in Section 3.14(d) of this Agreement the same day such communication takes place; provided that the summary of such oral communications shall not attribute which Rating Agency the communication was with. The 17g-5 Information Provider shall post such summary on the 17g-5 Information Provider’s Website in accordance with the procedures set forth in Section 3.14(d) of this Agreement.

 

(g)       None of the foregoing restrictions in this Section 3.14 or otherwise in this Agreement shall prohibit or restrict oral or written communications, or providing information, between the Master Servicer, the Operating Advisor, or the Special Servicer, on the one hand, and any Rating Agency or NRSRO, on the other hand, with regard to (i) such Rating Agency’s or NRSRO’s review of the ratings it assigns to the Master Servicer, the Operating Advisor or the Special Servicer, as applicable, (ii) such Rating Agency’s or NRSRO’s approval of the Master Servicer, the Operating Advisor, or the Special Servicer, as applicable, as a commercial mortgage master, special or primary servicer or (iii) such Rating Agency’s or NRSRO’s evaluation of the Master Servicer’s, the Operating Advisor’s, or the Special Servicer’s, as applicable, servicing operations in general; provided that the Master Servicer, the Operating Advisor, or the Special Servicer, as applicable, shall not provide any information relating to the Certificates or the Trust Loan to any Rating Agency or NRSRO in connection with such review and evaluation by such Rating Agency or NRSRO unless (x) Borrower, property and other deal specific identifiers are redacted; (y) such information has already been provided to the 17g-5 Information Provider pursuant to the terms hereof; or (z) the Rating Agency confirms in writing that it does not intend to use such information in undertaking credit rating surveillance with respect to the Certificates; provided, however, that the Rating Agencies may use information delivered in reliance on the certification provided in this clause (z) for any purpose to the extent it is publicly available (unless the availability results from a breach of this Agreement or any other confidentiality agreement to which such Rating Agency is subject) or comprises information collected by the applicable Rating Agency from the 17g-5 Information Provider’s Website (or another 17g-5 information provider’s website that such Rating Agency has access to) (in each case, subject to any agreement governing the use of such information, including any engagement letter with the Depositor or any other applicable depositor).

 

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(h)       The costs and expenses of compliance with this Section 3.14 by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any other party hereto shall not be Additional Trust Fund Expenses.

 

(i)        If any of the parties to this Agreement receives a Form ABS Due Diligence-15E from any party in connection with any third-party due diligence services such party may have provided with respect to the Trust Loan (“Due Diligence Service Provider”), such receiving party shall promptly forward such Form ABS Due Diligence-15E to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website. The 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website any Form ABS Due Diligence-15E it receives directly from a Due Diligence Service Provider or from another party to this Agreement, promptly upon receipt thereof.

 

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Section 3.15 Title and Management of REO Property and REO Accounts. (a) In the event that title to the Mortgaged Property is acquired for the benefit of Certificateholders and the Companion Loan Holder in foreclosure, by deed-in-lieu of foreclosure or upon abandonment or reclamation from bankruptcy, the deed or certificate of sale shall be taken in the name of the Trustee, or its nominee (which shall not include the Master Servicer), or a separate Trustee or co-Trustee, in each case on behalf of the Trust Fund and the Companion Loan Holder. The Special Servicer, on behalf of the Trust Fund and the Companion Loan Holder, shall dispose of any REO Property prior to the close of the third calendar year following the year in which the Trust Fund acquires ownership of the REO Property for purposes of Section 860G(a)(8) of the Code, unless (i) the Special Servicer on behalf of the Lower-Tier REMIC has applied for an extension of such period pursuant to Sections 856(e)(3) and 860G(a)(8)(A) of the Code, in which case the Special Servicer shall sell the REO Property within the applicable extension period or if the Special Servicer has applied for extension as provided in this clause (i) but such request has not yet been granted or denied, the additional time specified in such request, or (ii) the Special Servicer seeks and subsequently receives an Opinion of Counsel (which opinion shall be an expense of the Trust Fund and allocated in accordance with the allocation provisions set forth in the Co-Lender Agreement), addressed to the Special Servicer, the Certificate Administrator and the Trustee, to the effect that the holding by the Trust Fund of the REO Property for an additional specified period will not cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (determined without regard to the exception applicable for purposes of Section 860D(a) of the Code) at any time that any Certificate is outstanding, in which event such period shall be extended by such additional specified period subject to any conditions set forth in such Opinion of Counsel. The Special Servicer, on behalf of the Trust Fund and the Companion Loan Holder, shall dispose of any REO Property held by the Trust Fund prior to the last day of such period (taking into account extensions) by which the REO Property is required to be disposed of pursuant to the provisions of the immediately preceding sentence in a manner provided under Section 3.16 hereof. The Special Servicer shall manage, conserve, protect and operate the REO Property for the Certificateholders and the Companion Loan Holder solely for the purpose of its prompt disposition and sale in a manner which does not cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (determined without regard to the exception applicable for purposes of Section 860D(a) of the Code) and such that income from the operation or sale of such property does not result in receipt by the Trust Fund of any income from non-permitted assets as described in Section 860F(a)(2)(B) of the Code with respect to such property.

 

(b)       The Special Servicer shall have full power and authority, subject only to the Servicing Standard and the specific requirements and prohibitions of this Agreement, to do any and all things in connection with any REO Property as are consistent with the manner in which the Special Servicer manages and operates similar property owned or managed by the Special Servicer or any of its Affiliates, all on such terms and for such period as the Special Servicer deems to be in the best interests of Certificateholders and the Companion Loan Holder, in connection therewith, the Special Servicer shall agree to the payment of management fees that are consistent with general market standards. Consistent with the foregoing, the Special Servicer shall cause or permit to be earned with respect to the REO Property any “net income from foreclosure property”, within the meaning of Section 860G(c) of the Code, which is subject to tax under the REMIC Provisions, only if it has determined, and has so advised the Trustee and the Certificate Administrator in writing, that the earning of such income on a net after-tax basis

 

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could reasonably be expected to result in a greater recovery on behalf of Certificateholders and the Companion Loan Holder than an alternative method of operation or rental of the REO Property that would not be subject to such a tax.

 

The Special Servicer shall segregate and hold all revenues received by it with respect to any REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to any REO Property a segregated custodial account (each, an “REO Account”), each of which shall be an Eligible Account and shall be entitled “Strategic Asset Services LLC, on behalf of Wells Fargo Bank, National Association, as Trustee, in trust for the benefit of the Holders of COMM 2016-667M Mortgage Trust Commercial Mortgage Pass-Through Certificates, REO Account” and the Companion Loan Holder. The Special Servicer shall be entitled to withdraw for its account any interest or investment income earned on funds deposited in the REO Account to the extent provided in Section 3.07(b) of this Agreement. The Special Servicer shall deposit or cause to be deposited REO Proceeds in the REO Account within one Business Day after receipt of the REO Proceeds, and shall withdraw therefrom funds necessary for the proper operation, management and maintenance of the REO Property and for other Property Protection Expenses with respect to the REO Property, including:

 

(i)         all insurance premiums due and payable in respect of any REO Property;

 

(ii)        all real estate taxes and assessments in respect of any REO Property that may result in the imposition of a lien thereon;

 

(iii)       all costs and expenses reasonable and necessary to protect, maintain, manage, operate, repair and restore any REO Property; and

 

(iv)       any taxes imposed on the Lower-Tier REMIC in respect of net income from foreclosure property in accordance with Section 4.05.

 

To the extent that such REO Proceeds are insufficient for the purposes set forth in clauses (i) through (iii) above, the Master Servicer shall make such Advance unless the Master Servicer determines, in accordance with the Servicing Standard, that such Property Advance would constitute a Nonrecoverable Advance (provided that with respect to advancing insurance premiums or delinquent tax assessments the Master Servicer shall comply with the provisions of the second to last paragraph in Section 3.21(d) of this Agreement) and if the Master Servicer does not make any such Advance, the Trustee, to the extent the Trustee has actual knowledge of the Master Servicer’s failure to make such Advance, shall make such Advance, unless in each case, the Master Servicer or the Trustee, as applicable, determines that such Advance would be a Nonrecoverable Advance. The Trustee shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Master Servicer, as applicable, that an Advance, if made, would be a Nonrecoverable Advance. The Trustee, when making an independent determination whether or not a proposed Advance would be a Nonrecoverable Advance, shall make such determination in accordance with Section 3.21(d) based on its reasonable judgment. The Master Servicer or the Trustee, as applicable, shall be entitled to reimbursement of such Advances (with interest at the Advance Rate) made pursuant to the preceding sentence, to the extent permitted by Section 3.06 of this Agreement. The Special Servicer shall withdraw from the REO Account and remit to the Master Servicer for deposit into the Collection Account on a monthly basis prior to or on the related Due Date the Net REO Proceeds received or collected

 

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from each REO Property, except that in determining the amount of such Net REO Proceeds, the Special Servicer may retain in each REO Account reasonable reserves for repairs, replacements and necessary capital improvements and other related expenses.

 

Notwithstanding the foregoing, the Special Servicer shall not:

 

(i)         permit any New Lease to be entered into, renewed or extended, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property;

 

(ii)        permit any amount to be received or accrued under any New Lease, other than amounts that will constitute Rents from Real Property;

 

(iii)       authorize or permit any construction on any REO Property, other than the repair or maintenance thereof or the completion of a building or other improvement thereon, and then only if more than ten percent of the construction of such building or other improvement was completed before default on the Trust Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or

 

(iv)       Directly Operate or allow any Person to Directly Operate any REO Property on any date more than 90 days after its date of acquisition by the Trust Fund, unless such Person is an Independent Contractor;

 

unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel addressed to the Special Servicer, the Certificate Administrator and the Trustee (which opinion shall be an expense of the Trust Fund and allocated in accordance with the allocation provisions of the Co-Lender Agreement) to the effect that such action will not cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (determined without regard to the exception applicable for purposes of Section 860D(a) of the Code) at any time that it is held by the Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.

 

The Special Servicer shall be required to contract with an Independent Contractor, the fees and expenses of which shall be an expense of the Trust Fund and allocated in accordance with the allocation provisions of the Co-Lender Agreement and payable out of REO Proceeds, for the operation and management of any REO Property, within 90 days of the Trust Fund’s acquisition thereof (unless the Special Servicer shall have provided the Trustee and the Certificate Administrator with an Opinion of Counsel that the operation and management of any REO Property other than through an Independent Contractor shall not cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code) (which opinion shall be an expense of the Trust Fund and allocated in accordance with the allocation provisions of the Co-Lender Agreement; provided that:

 

(i)         the terms and conditions of any such contract shall be reasonable and customary for the area and type of property and shall not be inconsistent herewith;

 

(ii)        any such contract shall require, or shall be administered to require, that the Independent Contractor pay all costs and expenses incurred in connection with the

 

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operation and management of the REO Property, including those listed above, and remit all related revenues (net of such costs and expenses) to the Special Servicer as soon as practicable, but in no event later than 30 days following the receipt thereof by such Independent Contractor;

 

(iii)       none of the provisions of this Section 3.15(b) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trust Fund, the Trustee on behalf of the Certificateholders and the Companion Loan Holder, with respect to the operation and management of any the REO Property; and

 

(iv)       the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of the REO Property.

 

The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations hereunder for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification.

 

(c)       Promptly following any acquisition by the Special Servicer of an REO Property on behalf of the Trust Fund, the Special Servicer shall notify the Master Servicer thereof, and, the Special Servicer shall obtain an Updated Appraisal thereof, but only in the event that any Updated Appraisal with respect thereto is more than 9 months old and the Special Servicer has no actual knowledge of any material adverse change in circumstances that, consistent with the Servicing Standard, would call into question the validity of such Updated Appraisal, in order to determine the fair market value of the REO Property and shall notify the Depositor and the Master Servicer and the Companion Loan Holder of the results of such Appraisal. Any such Appraisal shall be conducted in accordance with Appraisal Institute standards and the cost thereof shall be advanced as a Property Advance. The Special Servicer shall obtain a new Updated Appraisal or a letter update every 9 months thereafter until the REO Property is sold.

 

(d)       When and as necessary, the Special Servicer shall send to the Certificate Administrator a statement prepared by the Special Servicer setting forth the amount of net income or net loss, as determined for federal income tax purposes, resulting from the operation and management of a trade or business on, the furnishing or rendering of a non-customary service to the tenants of, or the receipt of any other amount not constituting Rents from Real Property in respect of, any REO Property in accordance with Sections 3.15(a) and 3.15(b) of this Agreement.

 

Section 3.16 Sale of a Specially Serviced Loan or the REO Property. (a) The parties hereto may sell or purchase, or permit the sale or purchase of, the Whole Loan only on the terms and subject to the conditions set forth in this Section 3.16 or as otherwise expressly provided in or contemplated by Section 2.03(e) and Section 9.01 of this Agreement or in the Co-Lender Agreement.

 

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(b)       If the Special Servicer determines in accordance with the Servicing Standard that it would be in the best interests of the Certificateholders and the Companion Loan Holder (as a collective whole as if such Certificateholders and Companion Loan Holder constituted a single lender) to attempt to sell the Trust Loan if it is a Defaulted Mortgage Loan, the Special Servicer shall use efforts consistent with the Servicing Standard to solicit offers for such Defaulted Mortgage Loan on behalf of the Certificateholders and the Companion Loan Holder in such manner as will be reasonably likely to realize a fair price; provided, that the Special Servicer shall be required to sell (with the consent of the Directing Holder during a Subordinate Control Period) the Trust Loan together with the Companion Loan as one Whole Loan (subject to the terms of the Co-Lender Agreement). The Special Servicer shall accept the first (and, if multiple offers are received, the highest cash offer received in the solicitation process within the time frame set for such process by the Special Servicer) cash offer received from any Person that constitutes a fair price for such Defaulted Mortgage Loan, subject to any consent or consultation rights of the Directing Holder during any Subordinate Control Period and any Subordinate Consultation Period.

 

The Special Servicer shall give the Trustee, the Certificate Administrator, the Master Servicer, the Operating Advisor (during any Operating Advisor Consultation Period), the Directing Holder (during any Subordinate Control Period and any Subordinate Consultation Period), and the Companion Loan Holder not less than ten (10) Business Days’ (or five (5) Business Days’ notice in the case of the Directing Holder) prior written notice of its intention to sell a Defaulted Mortgage Loan (and the Certificate Administrator shall promptly forward such notice to the Certificateholders), and notwithstanding anything to the contrary herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any Defaulted Mortgage Loan pursuant to this Agreement. The notice provided to the Directing Holder and the Companion Loan Holder pursuant to the previous sentence shall include notice of the Directing Holder’s and the Companion Loan Holder’s opportunity to bid on the Defaulted Mortgage Loan.

 

(c)       Whether any cash offer constitutes a fair price for such Defaulted Mortgage Loan, as the case may be, shall be determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person. In determining whether any offer received from an Interested Person represents a fair price for a Defaulted Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or Updated Appraisal conducted in accordance with this Agreement within the preceding 9-month period or in the absence of any such Appraisal, on a narrative appraisal prepared by an Independent MAI appraiser selected by (i) the Special Servicer if the Special Servicer or an Affiliate of the Special Servicer is not making an offer with respect to a Defaulted Mortgage Loan, (ii) by the Master Servicer if the Special Servicer is making such an offer unless the Master Servicer and Special Servicer are Affiliates or (iii) the Operating Advisor if the Master Servicer and Special Servicer are Affiliates and the Special Servicer is making an offer. The cost of any such Updated Appraisal or narrative appraisal shall be covered by, and shall be reimbursable as, a Property Advance. No offer from an Interested Person shall constitute a fair price unless (i) if the offer is equal to or greater than the applicable Repurchase Price, the offer is the highest offer received, or (ii) if the offer is less than the applicable Repurchase Price, (a) the offer is the highest offer received and (b) at least two other offers are received from independent third parties. In addition, the Trustee shall be permitted to

 

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retain, at the expense of the related Interested Person, an independent third party expert in real estate or commercial mortgage loan matters with at least five years’ experience in valuing or investing in loans similar to the Trust Loan that has been selected with reasonable care by the Trustee to determine such fair price and will be permitted to conclusively rely on the opinion of such third party’s determination. Any costs and fees of the Trustee in connection with an offer by an Interested Person and the Trustee’s duties therewith shall be paid by such Interested Person.

 

In determining whether any offer from a Person other than an Interested Person constitutes a fair price for a Defaulted Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal or Updated Appraisal that it may have obtained pursuant to this Agreement within the prior 9 months), and in determining whether any offer from an Interested Person constitutes a fair price for such Defaulted Mortgage Loan, any appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of the Delinquency on such Defaulted Mortgage Loan, the period and amount of the occupancy level and physical condition of the Mortgaged Property, the state of the local economy in the area where the Mortgaged Property is located, the expected recovery from such Defaulted Mortgage Loan if the Special Servicer were to pursue a workout strategy, and the time and expense associated with a purchaser’s foreclosing on the Mortgaged Property. The Repurchase Price for a Defaulted Mortgage Loan shall in all cases be deemed a fair price.

 

In addition, the Special Servicer shall refer to all other relevant information obtained by it or otherwise contained in the Mortgage File; provided that the Special Servicer shall take account of any change in circumstances regarding the Mortgaged Property known to the Special Servicer that has occurred subsequent to, and that would, in the Special Servicer’s reasonable judgment, materially affect the value of the Mortgaged Property reflected in the most recent related Appraisal. Furthermore, the Special Servicer may consider available objective third party information obtained from generally available sources, as well as information obtained from vendors providing real estate services to the Special Servicer, concerning the market for distressed real estate loans and the real estate market for the subject property type in the area where the Mortgaged Property is located. The Special Servicer may, to the extent it is reasonable to do so in accordance with the Servicing Standard, conclusively rely on any opinions or reports of qualified Independent experts in real estate or commercial mortgage loan matters with at least five years’ experience in valuing or investing in loans similar to the subject Specially Serviced Loan, selected with reasonable care by the Special Servicer, in making such determination. All reasonable costs and expenses incurred by the Special Servicer pursuant to this Section 3.16(c) shall constitute, and be reimbursable as, Property Advances. The other parties to this Agreement shall cooperate with all reasonable requests for information made by the Special Servicer in order to allow the Special Servicer to perform its duties pursuant to this Section 3.16(c).

 

(d)       Subject to subsection (c) above, the Special Servicer shall act on behalf of the Trustee (for the benefit of the Certificateholders and the Companion Loan Holder) in negotiating and taking any other action necessary or appropriate in connection with the sale of a Defaulted Mortgage Loan, and the applicable collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge for its own account prospective offerors, and may retain, fees that approximate the Special Servicer’s actual costs in

 

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the preparation and delivery of information pertaining to such sales or exchanging offers without obligation to deposit such amounts into the REO Account or the Collection Account. Any sale of a Defaulted Mortgage Loan shall be final and without recourse to the Trustee or the Trust Fund (except such recourse to the Trust Fund imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none of the Special Servicer, the Master Servicer, the Depositor, the Certificate Administrator, the Operating Advisor or the Trustee shall have any liability to any Certificateholder or Companion Loan Holder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee.

 

(e)       Any sale of a Defaulted Mortgage Loan shall be for cash only.

 

(f)       The Controlling Class (or the Directing Holder on its behalf) or the Affiliates of the foregoing shall be entitled to participate in, and submit a bid in connection with, any sale of the REO Property.

 

(g)       The parties hereto may sell or purchase, or permit the sale or purchase of, an REO Property only on the terms and subject to the conditions set forth in this Section 3.16.

 

(h)       The Special Servicer shall use efforts consistent with the Servicing Standard to solicit offers for an REO Property on behalf of the Certificateholders and the Companion Loan Holder in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.15(a) of this Agreement. The Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for the REO Property. If the Special Servicer determines, in its good faith and reasonable judgment, that it will be unable to realize a fair price for any REO Property within the time constraints imposed by Section 3.15(a) of this Agreement, then the Special Servicer shall dispose of the REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received.

 

The Special Servicer shall give the Trustee, the Certificate Administrator, the Master Servicer and the Operating Advisor not less than ten Business Days’ prior written notice of its intention to sell an REO Property, and notwithstanding anything to the contrary herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any REO Property pursuant to this Agreement.

 

(i)        Whether any cash offer constitutes a fair price for an REO Property, as the case may be, shall be determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person; provided, however, that no offer from an Interested Person shall constitute a fair price unless it is the highest offer received. In determining whether any offer received from an Interested Person represents a fair price for an REO Property, the Trustee shall be supplied with and shall rely on the most recent appraisal or Updated Appraisal conducted in accordance with this Agreement within the preceding 9-month period or in the absence of any such appraisal, on a narrative appraisal prepared by an Independent MAI Appraiser selected by the Special Servicer if the

 

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Special Servicer or an Affiliate of the Special Servicer is not making an offer with respect to the REO Property (or by the Trustee if the Special Servicer is making such an offer). The cost of any such Updated Appraisal or narrative appraisal and any related costs and fees of the Trustee shall be covered by, and shall be reimbursable as, a Property Advance. The Trustee shall be permitted to retain, at the expense of the related Interested Person, an independent third party to determine such fair price and shall be permitted to conclusively rely on the opinion of such third party’s determination. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for an REO Property, the Special Servicer shall take into account (in addition to the results of any Appraisal or Updated Appraisal that it may have obtained pursuant to this Agreement within the prior 9 months), and in determining whether any offer from an Interested Person constitutes a fair price for the REO Property, any appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of the occupancy level and physical condition of the Mortgaged Property or REO Property, the state of the local economy and the obligation to dispose of the REO Property within the time period specified in Section 3.15(a) of this Agreement. The Repurchase Price for an REO Property shall in all cases be deemed a fair price.