BARCLAYS Commercial Mortgage Securities LLC, as Depositor, KEYBANK NATIONAL ASSOCIATION, as Servicer and as Special Servicer, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Certificate Administrator and as Trustee, and PARK BRIDGE LENDER SERVICES LLC, as...

Exhibit 4.6

 

EXECUTION VERSION

 

 

BARCLAYS Commercial Mortgage Securities LLC,

 
as Depositor,

 

KEYBANK NATIONAL ASSOCIATION,

 

as Servicer and as Special Servicer,

 

XXXXX FARGO BANK, NATIONAL ASSOCIATION,

 

as Certificate Administrator and as Trustee,

 

and

 

PARK BRIDGE LENDER SERVICES LLC,

 
as Operating Advisor 

 

 

 

TRUST AND SERVICING AGREEMENT

Dated as of December 19, 2019

 

 

 

MRCD 2019-PARK Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2019-PARK

 

 

 

 

 

TABLE OF CONTENTS

 

    page
     
1. DEFINITIONS  
     
  1.1. Definitions 3
  1.2. Interpretation 58
  1.3. Certain Calculations in Respect of the Trust Loan or the Mortgage Loan 58
     
2. DECLARATION OF TRUST; ORIGINAL ISSUANCE OF CERTIFICATES  
       
  2.1. Creation and Declaration of Trust; Conveyance of the Trust Loan 61
  2.2. Acceptance by the Trustee and the Custodian 64
  2.3. Representations and Warranties of the Trustee 67
  2.4. Representations and Warranties of the Certificate Administrator 68
  2.5. Representations and Warranties of the Servicer 70
  2.6. Representations and Warranties of the Special Servicer 71
  2.7. Representations and Warranties of the Depositor 72
  2.8. Representations and Warranties of the Operating Advisor 74
  2.9. Representations and Warranties Contained in the Trust Loan Purchase Agreement 75
  2.10. Execution and Delivery of Certificates; Issuance of Uncertificated Lower-Tier Interests 77
  2.11. Miscellaneous REMIC Provisions 77
  2.12. Resignation Upon Prohibited Risk Retention Affiliation 77
     
3. ADMINISTRATION AND SERVICING OF THE Mortgage Loan  
       
  3.1. Servicer to Act as the Servicer; Special Servicer to Act as the Special Servicer 78
  3.2. Sub-Servicing Agreements 80
  3.3. Cash Management Account 82
  3.4. Collection Account, Companion Loan Distribution Account and Interest Reserve Account 82
  3.5. Distribution Account 87
  3.6. Foreclosed Property Account 88
  3.7. Appraisal Reductions 89
  3.8. Investment of Funds in the Collection Account and The Foreclosed Property Account 92
  3.9. Payment of Taxes, Assessments, etc. 93
  3.10. Appointment of Special Servicer 94
  3.11. Maintenance of Insurance and Errors and Omissions and Fidelity Coverage 101
  3.12. Procedures with Respect to Defaulted Mortgage Loan; Realization upon the Property 103
  3.13. Custodian and Trustee to Cooperate; Release of Items in Mortgage File 106

 

 -i-

 

 

  3.14. Title and Management of Foreclosed Property 106
  3.15. Sale of the Foreclosed Property 108
  3.16. Sale of the Mortgage Loan 111
  3.17. Servicing Compensation 114
  3.18. Reports to the Certificate Administrator; Account Statements 119
  3.19. Annual Statement as to Compliance 121
  3.20. Annual Independent Public Accountants’ Servicing Report 122
  3.21. Access to Certain Documentation Regarding the Mortgage Loan and Other Information 123
  3.22. Inspections 124
  3.23. Advances 124
  3.24. Modifications of Mortgage Loan Documents 128
  3.25. Conflicts of Interests; Mandatory Resignation of Servicer and Special Servicer 131
  3.26. Intercreditor Agreement; Notice of Mortgage Loan Event of Default to Mezzanine Lenders 131
  3.27. Additional Matters with Respect to the Loan 131
  3.28. Rating Agency Confirmation 135
  3.29. Miscellaneous Provisions 136
  3.30. The Operating Advisor 137
  3.31. Companion Loan Intercreditor Matters 144
     
4. DISTRIBUTIONS AND STATEMENTS TO CERTIFICATEHOLDERS  
       
  4.1. Distributions 145
  4.2. Withholding Tax 148
  4.3. Allocation and Distribution of Yield Maintenance Premiums 149
  4.4. Statements to Certificateholders 149
  4.5. Investor Q&A Forum; Investor Registry and Rating Agency Q&A Forum 152
     
5. THE CERTIFICATES  
       
  5.1. The Certificates 156
  5.2. Form and Registration 158
  5.3. Registration of Transfer and Exchange of Certificates 159
  5.4. Mutilated, Destroyed, Lost or Stolen Certificates 166
  5.5. Persons Deemed Owners 166
  5.6. Access to List of Certificateholders’ Names and Addresses; Special Notices 167
  5.7. Maintenance of Office or Agency 168
     
6. THE DEPOSITOR, THE SERVICER, THE SPECIAL SERVICER AND the OPERATING ADVISOR  
       
  6.1. Respective Liabilities of the Depositor, the Servicer, the Special Servicer and the Operating Advisor 168

 

 -ii-

 

 

  6.2. Merger or Consolidation of the Servicer, the Special Servicer or the Operating Advisor 168
  6.3. Limitation on Liability of the Depositor, the Servicer, the Special Servicer, the Operating Advisor and Others 168
  6.4. Servicer and Special Servicer Not to Resign; Replacement of Servicer or Special Servicer 170
  6.5. Ethical Wall 171
  6.6. Indemnification by the Servicer, the Special Servicer, the Operating Advisor and the Depositor 172
     
7. SERVICER TERMINATION EVENTS; TERMINATION OF SPECIAL SERVICER WITHOUT CAUSE  
       
  7.1. Servicer Termination Events; Special Servicer Termination Events 173
  7.2. Trustee to Act; Appointment of Successor 180
  7.3. [Reserved] 182
  7.4. Other Remedies of Trustee 182
  7.5. Waiver of Past Servicer Termination Events and Special Servicer Termination Events 182
  7.6. Trustee as Maker of Advances 183
     
8. THE TRUSTEE AND THE Certificate Administrator  
       
  8.1. Duties of the Trustee and the Certificate Administrator 184
  8.2. Certain Matters Affecting the Trustee and the Certificate Administrator 186
  8.3. Neither the Trustee nor the Certificate Administrator is Liable for Certificates or the Mortgage Loan 189
  8.4. Trustee and Certificate Administrator May Own Certificates 191
  8.5. Trustee’s and Certificate Administrator’s Fees and Expenses 191
  8.6. Eligibility Requirements for the Trustee and the Certificate Administrator; Errors and Omissions Insurance 192
  8.7. Resignation and Removal of the Trustee or the Certificate Administrator 194
  8.8. Successor Trustee or Successor Certificate Administrator 196
  8.9. Merger or Consolidation of the Trustee or the Certificate Administrator 197
  8.10. Appointment of Co-Trustee or Separate Trustee 197
  8.11. Appointment of Authenticating Agent and Custodian 199
  8.12. Indemnification by the Trustee and the Certificate Administrator 200
  8.13. Certificate Administrator and Servicer Not Responsible for Inconsistent Payment Information 200
  8.14. Access to Certain Information 201
     
9. CERTAIN MATTERS RELATING TO THE DIRECTING HOLDER  
       
  9.1. Selection and Removal of the Directing Holder 210
  9.2. Limitation on Liability of Directing Holder; Acknowledgements of the Certificateholders 212
  9.3. Rights and Powers of the Directing Holder 213

 

 -iii-

 

 

  9.4. Directing Holder Contact with Servicer and Special Servicer 217
     
 10. TERMINATION  
       
  10.1. Termination 217
  10.2. Additional Termination Requirements 218
  10.3. Trusts Irrevocable 218
       
11. MISCELLANEOUS PROVISIONS  
     
  11.1. Amendment 219
  11.2. Recordation of Agreement; Counterparts 222
  11.3. Governing Law; Waiver of Trial by Jury; Submission to Jurisdiction 223
  11.4. Notices 223
  11.5. Notices to the Rating Agency 228
  11.6. Severability of Provisions 228
  11.7. Limitation on Rights of Certificateholders 229
  11.8. Certificates Nonassessable and Fully Paid 229
  11.9. Reproduction of Documents 230
  11.10. No Partnership 230
  11.11. Actions of Certificateholders 230
  11.12. Successors and Assigns 230
  11.13. Acceptance by Authenticating Agent, Certificate Registrar 231
  11.14. Xxxxxx Act 231
  11.15. Assumption by Trust of Duties and Obligations of the Trust Loan Sellers Under the Mortgage Loan Documents 231
  11.16. Grant of a Security Interest 231
  11.17. Cooperation with the Trust Loan Sellers with Respect to Rights Under the Mortgage Loan Agreement 232
     
12. REMIC ADMINISTRATION  
       
  12.1. REMIC Administration 232
  12.2. Foreclosed Property 236
  12.3. Prohibited Transactions and Activities 238
  12.4. Indemnification with Respect to Certain Taxes and Loss of REMIC Status 238
     
13. EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE  
       
  13.1. Intent of the Parties; Reasonableness 239
  13.2. Succession; Sub-Servicers; Subcontractors 239
  13.3. Other Securitization Trust’s Filing Obligations 241
  13.4. Form 10-D Disclosure 241
  13.5. Form 10-K Disclosure 242
  13.6. Form 8-K Disclosure 242
  13.7. Annual Compliance Statements 243
  13.8. Annual Reports on Assessment of Compliance with Servicing Criteria 244
  13.9. Annual Independent Public Accountants’ Servicing Report 245

 

 -iv-

 

 

  13.10. Significant Obligor 246
  13.11. Xxxxxxxx-Xxxxx Backup Certification 247
  13.12. Indemnification 248
  13.13. Amendments 249
  13.14. Termination of the Certificate Administrator 249
  13.15. Termination of Sub-Servicing Agreements 249
  13.16. Notification Requirements and Deliveries in Connection with Securitization of a Companion Loan 249

 

EXHIBITS

 

Exhibit A-1 Form of Class A Certificates
Exhibit A-2 Form of Class B Certificates
Exhibit A-3 Form of Class C Certificates
Exhibit A-4 Form of Class D Certificates
Exhibit A-5 Form of Class E Certificates
Exhibit A-6 Form of Class F Certificates
Exhibit A-7 Form of Class G Certificates
Exhibit A-8 Form of Class J Certificates
Exhibit A-9 Form of Class HRR Certificates
Exhibit A-10 Form of Class R Certificates
Exhibit B Form of Request for Release
Exhibit C Form of Transfer Certificate for Rule 144A Global Certificate to Temporary Regulation S Global Certificate
Exhibit D Form of Transfer Certificate for Rule 144A Global Certificate to Regulation S Global Certificate
Exhibit E Form of Transfer Certificate for Temporary Regulation S Global Certificate to Rule 144A Global Certificate during Restricted Period
Exhibit F Form of Certification to be given by Beneficial Owner of Temporary Regulation S Global Certificate
Exhibit G Form of Transfer Certificate of Non-Book Entry Certificate to Temporary Regulation S Global Certificate
Exhibit H Form of Transfer Certificate of Non-Book Entry Certificate to Regulation S Global Certificate
Exhibit I Form of Transfer Certificate of Non-Book Entry Certificate to Rule 144A Global Certificate
Exhibit J-1 Form of Affidavit Pursuant to Section 860E(e) of the Internal Revenue Code of 1986
Exhibit J-2 Form of Transferor Letter
Exhibit J-3 Form of ERISA Representation Letter
Exhibit J-4 Form of Transferee Certificate for Transfers of Risk Retention Certificates
Exhibit J-5 Form of Transferor Certificate for Transfer of Risk Retention Certificates
Exhibit J-6 Form of Request of Retaining Sponsor Consent for Release of the Class HRR Certificates
Exhibit K-1 Form of Investor Certification for Non-Borrower Related Parties
Exhibit K-2 Form of Investor Certification for Borrower Related Parties (for Persons other than the Directing Holder and/or a Controlling Class Certificateholder)

 

 -v-

 

 

Exhibit L Applicable Servicing Criteria
Exhibit M NRSRO Certification
Exhibit N-1 Form of Transferor Certificate for Transfer of the Excess Servicing Fee Rights
Exhibit N-2 Form of Transferee Certificate for Transfer of the Excess Servicing Fee Rights
Exhibit O Form of Online Market Data Provider Certificate
Exhibit P Form of Investment Representation Letter
Exhibit Q Form of Notice of Mezzanine Collateral Foreclosure
Exhibit R CREFC® Payment Information
Exhibit S Form of Operating Advisor Annual Report
Exhibit T Form of Notice from Operating Advisor Recommending Replacement of Special Servicer
Exhibit U Form of Certificate Administrator Receipt of the Class HRR Certificates
Exhibit V Additional Form 10-D Disclosure
Exhibit W Additional Form 10-K Disclosure
Exhibit X Additional Disclosure Notification
Exhibit Y Form 8-K Disclosure Information
Exhibit Z Initial Sub-Servicers
Exhibit AA Form of Annual Compliance Statement
Exhibit BB Form of Report on Assessment of Compliance with Servicing Criteria
Exhibit CC-1 Form of Certification to be Provided to Depositor by Servicer
Exhibit CC-2 Form of Certification to be Provided to Depositor by Special Servicer
Exhibit CC-3 Form of Certification to be Provided to Depositor by Certificate Administrator
Exhibit CC-4 Form of Certification to be Provided to Depositor by Trustee
Exhibit CC-5 Form of Certification to be Provided to Depositor by Operating Advisor

 

 -vi-

 

 

THIS TRUST AND SERVICING AGREEMENT (“Agreement”) is dated as of December 19, 2019 among Barclays Commercial Mortgage Securities LLC, as Depositor, KeyBank National Association, as Servicer and as Special Servicer, Park Bridge Lender Services LLC, as Operating Advisor, and Xxxxx Fargo Bank, National Association, as Certificate Administrator and as Trustee.

 

INTRODUCTORY STATEMENT

 

Terms not defined in this Introductory Statement shall have the meanings specified in Article 1 hereof.

 

Barclays Capital Real Estate Inc. (in such capacity, “Barclays”) and Citi Real Estate Funding Inc. (in such capacity, “CREFI”) co-originated a five-year fixed rate, interest-only mortgage loan (the “Mortgage Loan”) pursuant to a Loan Agreement, dated as of the Origination Date (the “Mortgage Loan Agreement”), among Barclays, CREFI and Parkmerced Owner LLC, as borrower (the “Borrower”).

 

The Mortgage Loan consists of (a) a loan that has an unpaid principal balance as of the Closing Date of $955,000,000 (the “Trust Loan”) and is evidenced by the promissory notes designated as Note X-0, Xxxx X-0, Xxxx X-0 and Note B-2 (as the same may hereafter be amended, restated, replaced, extended, renewed, supplemented, consolidated, severed, split or otherwise modified, the “Trust Notes”) and (b) loans that have an aggregate unpaid principal balance as of the Closing Date of $545,000,000 (the “Companion Loans”) and are evidenced by the promissory notes designated as Note X-0, Xxxx X-0, Xxxx X-0, Note A-6, Note A-7, Note A-8, Note C-1 and Note C-2 (as the same may hereafter be amended, restated, replaced, extended, renewed, supplemented, consolidated, severed, split or otherwise modified, the “Companion Loan Notes”).  The Companion Loans evidenced by Note C-1 and Note C-2 are referred to in this Agreement as the “Subordinate Companion Loans”.  The Trust Notes and the Companion Loan Notes are collectively referred to herein as the “Notes”.

 

The Trust Loan was sold and assigned by Barclays and CREFI (collectively, the “Trust Loan Sellers”) to the Depositor pursuant to a trust loan purchase and sale agreement, dated as of December 19, 2019 (the “Trust Loan Purchase Agreement”), among the Trust Loan Sellers and the Depositor.  The Companion Loans are not part of the Trust Fund.  The relative rights of the respective lenders in respect of the Mortgage Loan are set forth in a co-lender agreement dated as of December 5, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Co-Lender Agreement”), among the holders of the Trust Notes and the holders of the Companion Loan Notes.  From and after the Closing Date, the entire Mortgage Loan is to be serviced and administered in accordance with this Agreement.

 

As provided for herein, the Certificate Administrator shall elect or shall cause elections to be made to treat designated portions of the Trust Fund for federal income tax purposes as two separate real estate mortgage investment conduits (the “Upper-Tier REMIC” and the “Lower-Tier REMIC” and, each, a “Trust REMIC”).  Each Class of Regular Certificates will represent a single Class of “regular interests” in the Upper-Tier REMIC, as further described herein.  Each Class of Uncertificated Lower-Tier Interests will represent a single class of

 

 

 

“regular interests” in the Lower-Tier REMIC as further described herein. The Class R Certificates will evidence the sole Class of “residual interests” in each of the Upper-Tier REMIC and Lower-Tier REMIC for purposes of the REMIC Provisions under federal income tax law.

 

The Class HRR Certificates will also represent ownership of an interest in the Excess Liquidation Proceeds Option, which will be an asset of the Trust that is not an asset of either Trust REMIC. References to the Regular Certificates refer to the Class HRR Certificates only to the extent those Certificates represent an interest in the Class HRR Regular Interest, and do not refer to the interest in the Excess Liquidation Proceeds Option, except where otherwise indicated.

 

In exchange for the Trust Loan and the Uncertificated Lower-Tier Interests, the Trust will issue to the Depositor the Class A, Class B, Class C, Class D, Class E, Class F, Class G, Class J, Class HRR and Class R Certificates (collectively, the “Certificates”), which Certificates in the aggregate will evidence the entire ownership interest in the Trust.  The Trust Fund consists principally of the Trust Loan, the Mortgage and the Mortgage Loan Documents (exclusive of the rights of the Companion Loan Holders thereunder) and all payments under, and proceeds of, the Trust Loan from and after the Closing Date.

 

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

 

UPPER-TIER REMIC

 

As further described in Section 2.11, the Class A, Class B, Class C, Class D, Class E, Class F, Class G, Class J and Class HRR Certificates will evidence “regular interests” in the Upper-Tier REMIC created hereunder.  The Class UT-R Interest will constitute the sole Class of “residual interests” in the Upper-Tier REMIC created hereunder, and will be evidenced by the Class R Certificates.  The following table sets forth the class designation, the initial Pass-Through Rate and the aggregate initial Certificate Balance (the “Original Certificate Balance”), as applicable, for each Class of Regular Certificates and the Class UT-R Interest comprising the interests in the Upper-Tier REMIC created hereunder:

 

Class
Designation

 

Initial Pass-Through Rate
(per annum)

 

Original Certificate
Balance

Class A

 

2.71752(1)

 

$186,000,000

Class B

 

2.71752(1)

 

$29,800,000

Class C

 

2.71752(1)

 

$23,000,000

Class D

 

2.71752(2)

 

$63,200,000(2)

Class E

 

2.71752(3)

 

$163,000,000

Class F

 

2.71752(3)

 

$101,000,000

Class G

 

2.71752(3)

 

$175,000,000

Class J

 

4.25000(3)

 

$139,000,000

Class HRR

 

4.25000(3)

 

$75,000,000

Class UT-R

 

None(4)

 

None(4)

 

 

-2-

 

(1)

The Pass-Through Rate applicable to each of the Class A, Class B and Class C Certificates will be a per annum rate equal to the WAC Rate.

 

(2)

The Class D Certificates will consist of two portions (“Portion D-1” and “Portion D-2”).  Portion D-1 will have an initial portion balance of $8,200,000, and Portion D-2 will have an initial portion balance of $55,000,000. The “Portion Balance” with respect to each of Portion D-1 and Portion D-2 will be equal to the initial portion balance of such portion less the sum of (a) all amounts distributed to Certificateholders of the Class D Certificates on all previous Distribution Dates as principal and (b) the aggregate amount of Realized Losses allocated to such Class of Certificates on all previous Distribution Dates.  The Pass-Through Rate applicable to the Class D Certificates will be a per annum rate equal to the weighted average of, (a) with respect to Portion D-1, the WAC Rate, and (b) with respect to Portion D-2, the Net Component Rate on the related Component, weighted on the basis of their respective Portion Balances.

 

(3)

The Pass-Through Rate applicable to each of the Class E, Class F, Class G, Class J and Class HRR Certificates will be a per annum rate equal to the Net Component Rate on the related Component.

 

(4)

The Class UT-R Interest (evidenced by the Class R Certificates) will not have a Certificate Balance, will not bear interest and will not be entitled to distributions of Yield Maintenance Premiums.  Any Available Funds remaining in the Upper-Tier Distribution Account, after all required distributions under this Agreement have been made to each other Class of Certificates and the Class LT-R Interest, will be distributed to the Holders of the Class R Certificates in respect of the Class UT-R Interest.

 

LOWER-TIER REMIC

 

As further described in Section 2.11, the Class LA, Class LB, Class LC, Class LD-1, Class LD-2, Class LE, Class LF, Class LG, Class LJ and Class LHRR Uncertificated Interests will evidence “regular interests” in the Lower-Tier REMIC created hereunder.  The Class LT-R Interest will constitute the sole Class of “residual interests” in the Lower-Tier REMIC created hereunder and will be evidenced by the Class R Certificates.  The following table sets forth the initial Lower-Tier Principal Amounts and Pass-Through Rates for the Uncertificated Lower-Tier Interests and the Class LT-R Interest comprising the interests in the Lower-Tier REMIC created hereunder:

 

Class
Designation

 

Pass-Through Rate

 

Original Lower-Tier
Principal Amount

Class LA

 

(1)

 

$186,000,000

Class LB

 

(1)

 

$29,800,000

Class LC

 

(1)

 

$23,000,000

Class LD-1

 

(1)

 

$8,200,000

Class LD-2

 

(2)

 

$55,000,000

Class LE

 

(2)

 

$163,000,000

Class LF

 

(2)

 

$101,000,000

Class LG

 

(2)

 

$175,000,000

Class LJ

 

(2)

 

$139,000,000

Class LHRR

 

(2)

 

$75,000,000

Class LT-R

 

None(3)

 

None(3)

 

 

(1)

For any Distribution Date, the Pass-Through Rate for each of the Class LA, Class LB, Class LC and Class LD-1 Uncertificated Lower-Tier Interests shall be the WAC Rate for such Distribution Date.

 

-3-

 

(2)

For any Distribution Date, the Pass-Through Rate for each of the Class LD-2, Class LE, Class LF, Class LG, Class LJ and Class LHRR Uncertificated Lower-Tier Interests shall be the Net Component Rate of the applicable Component for such Distribution Date.

 

(3)

The Class LT-R Interest (evidenced by the Class R Certificates) will not have a Certificate Balance, will not bear interest and will not be entitled to distributions of Yield Maintenance Premiums.  Any Available Funds constituting assets remaining in the Lower-Tier Distribution Account after distributing the Lower-Tier Distribution Amount shall be distributed to the Holders of the Class R Certificates in respect of the Class LT-R Interest (but only to the extent of the Available Funds for such Distribution Date, if any, remaining in the Lower-Tier Distribution Account).

 

All covenants and agreements made by the Depositor herein are for the benefit and security of the Certificateholders and the Trustee as Holder of the Uncertificated Lower-Tier Interests.  The Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee and Operating Advisor are entering into this Agreement, and the Trustee is accepting the trusts created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.

 

W I T N E S S E T H  T H A T:

 

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

 

1.            DEFINITIONS

 

1.1.          Definitions. Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings and such meanings shall be equally applicable to the singular and plural forms of such terms, as the context may require.

 

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

 

“17g-5 Information Provider’s Website”:  The internet website of the 17g-5 Information Provider that will initially be located within the Certificate Administrator’s Website (xxx.xxxxxxx.xxx), under the ‘NRSRO’ tab on the page relating to this transaction.  Such website shall provide means of navigation for the Depositor and each NRSRO (including the Rating Agencies) to the portion of the Certificate Administrator’s website available to Privileged Persons.

 

“A Notes”: The promissory notes designated as Note X-0, Xxxx X-0, Xxxx X-0, Note A-4, Note X-0, Xxxx X-0, Xxxx X-0 and Note A-8.

 

“Acceptable Insurance Default”:  Any default arising when the Mortgage Loan Documents require that the Borrower must maintain all risk casualty insurance or other insurance that covers damages or losses arising from acts of terrorism and the Special Servicer has determined, in its reasonable judgment in accordance with Accepted Servicing Practices, that (i) such insurance is not available at commercially reasonable rates and the subject hazards are not commonly insured against by prudent owners of similar real properties located in or near the geographic region in which the 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

 

-4-

 

at any rate.  Each of the Servicer (at its own expense) and the Special Servicer (as a Trust Fund Expense) shall be entitled to rely on insurance consultants in making the determinations described in this definition.

 

“Accepted Servicing Practices”:  As defined in Section 3.1.

 

“Acquisition Date”:  The date upon which, under the Code (and in particular the REMIC Provisions and Section 856(e) of the Code), the Trust Fund is deemed to have acquired the Property.

 

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

 

“Additional Compensation”:  Default Interest and late payment fees (after all payments pursuant to Section 3.4(c)(v) and 3.4(c)(vi)), Assumption Fees, Assumption Application Fees, substitution fees, release fees (including, without limitation, any fees payable in connection with a defeasance), Modification Fees, consent fees, loan service transaction fees, amounts collected for checks returned for insufficient funds, charges for beneficiary statements or demands, other loan processing fees, review fees and similar fees and expenses to which the Servicer and the Special Servicer, as applicable, are entitled (to the extent permitted by (or not otherwise prohibited by)) and specifically allocated to such amounts or actually paid by the Borrower in accordance with the terms of the Mortgage Loan Documents or pursuant to this Agreement and any income earned (net of losses (subject to Section 3.8(b)) on the investment of funds deposited in the Collection Account, the Foreclosed Property Account and any Reserve Account pursuant to Section 3.8 of this Agreement.

 

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

 

“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 V 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 W hereto.

 

“Additional Servicer”:  Each Affiliate of the Servicer or the Special Servicer that Services the Mortgage Loan and each Person who is not an Affiliate of the Servicer, other than the Special Servicer or the Certificate Administrator, who Services the Mortgage Loan as of any date of determination.

 

“Administrative Advances”:  As defined in Section 3.23(b).

 

“Advance”:  Any Administrative Advance, Monthly Payment Advance or the Property Protection Advance.

 

“Advance Rate”:  As defined in Section 3.23(d).

 

“Adverse REMIC Event”:  As defined in Section 12.1(j).

 

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“Affiliate”:  With respect to any specified Person, any other Person, directly or indirectly, controlling or controlled by or under common control with such specified Person.  For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract, relation to individuals or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.  The Trustee and/or the Certificate Administrator may obtain and rely upon an Officer’s Certificate of the Servicer, the Special Servicer, the Trustee (in the case of the Certificate Administrator), the Certificate Administrator (in the case of the Trustee), the Operating Advisor, the Borrower or the Depositor, as applicable, to determine whether any Person is an Affiliate of the Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Borrower or the Depositor.

 

“Agreement”:  This Trust and Servicing Agreement (including all exhibits hereto) and all amendments and supplements hereto.

 

“AIMCO Option Holder”:  APMSF Commons LLC.

 

“A.M. Best”:  A.M. Best Company, Inc., and its successors in interest.

 

“Annual Budget”:  As defined in the Mortgage Loan Agreement.

 

“Applicable Banking Law”:  As defined in Section 8.2(d).

 

“Applicable Servicing Criteria”:  With respect to the Servicer, the Special Servicer or any Servicing Function Participant, the Servicing Criteria applicable to it, as set forth on Exhibit L attached hereto. For clarification purposes, multiple parties can have responsibility for the same Applicable Servicing Criteria and with respect to a Servicing Function Participant engaged by the Servicer or the Special Servicer, the term “Applicable Servicing Criteria” may refer to a portion of the Applicable Servicing Criteria applicable to the Servicer or the Special Servicer, as the case may be.

 

“Applied Realized Loss Amount”:  All amounts applied to reduce the Certificate Balance of a Class of Certificates in respect of Realized Losses pursuant to Section 4.1(g).

 

“Appraisal”:  With respect to the Property or Foreclosed Property, an appraisal of the Property or Foreclosed Property, conducted by an Independent Appraiser in accordance with the standards of the Appraisal Institute and certified by such Independent Appraiser as having been prepared in accordance with the requirements of the Standards of Professional Practice of the Appraisal Institute with an “MAI” designation and the Uniform Standards of Professional Appraisal Practice of the Appraisal Foundation, as well as the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended; provided that after an initial “Appraisal” has been obtained pursuant to the terms of this Agreement, an update of such initial Appraisal shall be considered an “Appraisal” hereunder for all purposes.  All Appraisals (and updates thereof) obtained pursuant to the terms of this Agreement shall include a valuation using the “income capitalization – discounted cash flow approach” and set forth the discount rate and terminal capitalization rate utilized by the Independent Appraiser.  All calculations under this Agreement requiring that a “value” or “appraised value” be used with respect to the Property or

 

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Foreclosed Property (as applicable) shall use the most recently determined appraised value set forth in an Appraisal (or update thereof) unless a different valuation is specifically required (such as the appraised value of the Property as of the Origination Date).  With respect to any Appraisal Reduction Amount calculated for purposes of determining an Appraisal Reduction Event, the appraised value (as determined by an updated Appraisal) of the Property securing the Mortgage Loan will be determined on an “as-is” basis, based upon the current physical condition, use and zoning of the Property as of the date of the Appraisal. 

 

“Appraisal Reduction Amount”:  As of any date of determination, an amount equal to the excess of (i) the outstanding principal balance of the Mortgage Loan on such date plus the sum of (A) all accrued and unpaid interest on each Note (or, in the case of the B Notes and C Notes, each Component) at the applicable Note Rate (or, in the case of the B Notes and C Notes, each Component Rate), (B) all unreimbursed Administrative Advances, Property Protection Advances and interest on all Advances at the Advance Rate in respect of the Mortgage Loan or the Property and interest on all Companion Loan Advances, (C) the amount of any Advances and interest on the Advances previously reimbursed from principal collections on the Mortgage Loan that have not otherwise been recovered from the Borrower, (D) all currently due and unpaid real estate taxes and assessments and insurance premiums and all other amounts due and unpaid in respect of the Property (which taxes, premiums and other amounts have not been the subject of an Advance) and (E) to the extent not duplicative of amounts in clauses (B), (C) or (D), all unpaid Trust Fund Expenses then due with respect to the related Note over (ii) the sum of (x) 90% of the appraised value (as determined by an Appraisal) of the Property securing the Mortgage Loan less the amount of any liens (exclusive of Permitted Encumbrances) on the Property senior to the lien of the Mortgage Loan Documents plus (y) any escrows with respect to the Mortgage Loan, including for taxes and insurance premiums, plus (z) any Threshold Event Collateral, if applicable.  The Trust Loan and the Companion Loans shall be treated as a single mortgage loan for purposes of calculating the Appraisal Reduction Amount.  Any Appraisal Reduction Amounts with respect to the Mortgage Loan shall be allocated, first, to the C Notes, on a pro rata and pari passu basis, up to the full outstanding principal balance thereof, then to the B Notes, on a pro rata and pari passu basis, up to the full outstanding principal balance thereof, then to the A Notes, on a pro rata and pari passu basis, up to the full outstanding principal balance thereof.  Any Appraisal Reduction Amount allocated to the A Notes will be allocated to the Trust A Note and the Companion Loan A Notes, on a pro rata and pari passu basis, based on their respective outstanding principal balances thereof.

 

“Appraisal Reduction Event”:  The earliest of (i) 60 days after an uncured payment delinquency (other than a delinquency in respect of the Balloon Payment) occurs in respect of the Mortgage Loan, (ii) 90 days after an uncured delinquency occurs in respect of the Balloon Payment for the Mortgage Loan unless a refinancing is anticipated within 120 days after the Maturity Date of the Mortgage Loan (as evidenced by a fully executed term sheet, refinancing commitment or signed purchase and sale agreement that is reasonably satisfactory in form and substance to the Servicer from an acceptable lender or purchaser that provides that such refinancing or sale will occur within 120 days after the Maturity Date), in which case 120 days after such uncured delinquency, (iii) 60 days after a reduction in Monthly Payments or a material adverse economic change with respect to the terms of the Mortgage Loan has become effective, (iv) immediately after a receiver has been appointed in respect of the Property on behalf of the Trust or any other creditor, (v) immediately after the Borrower declares, or becomes the subject

 

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of, bankruptcy, insolvency or similar proceeding, admits in writing the inability to pay its debts as they came due or makes an assignment for the benefit of creditors, or (vi) immediately after the Property becomes a Foreclosed Property. 

 

“Appraised-Out Class”:  As defined in Section 3.7(f).

 

“ASR Consultation Process”:  As defined in Section 3.10(j).

 

“Asset Status Report”:  As defined in Section 3.10(i).

 

“Assignment of Management Agreement”:  With respect to the Property, as defined in the Mortgage Loan Agreement.

 

“Assignment of Mortgage”:  An assignment of the applicable Mortgage without recourse, notice of transfer or equivalent instrument, in recordable form, which is sufficient under the laws of the jurisdiction in which the Property is located to reflect of record the assignment of the Mortgage to the Trustee on behalf of the Trust Fund; provided, however, that the Trustee, the Certificate Administrator, the Servicer and the Special Servicer shall not be responsible for determining whether any such assignment is legally sufficient or in recordable form.

 

“Assumed Monthly Payment”:  With respect to the Trust Loan for any Distribution Date (including any Distribution Date following a delinquency in the payment of the Balloon Payment or the foreclosure of the Trust Loan or acceptance by the Trust (on behalf of the Certificateholders) and the Companion Loan Holders of a deed-in-lieu of foreclosure or comparable conversion of the Trust Loan), shall be equal to the scheduled monthly payment of interest that would have been due in respect of the Trust Loan or the C Notes, as applicable, on its Maturity Date (excluding Default Interest) and each subsequent Payment Date (or Assumed Payment Date) if the Trust Loan or C Notes, as applicable, had been required to continue to accrue interest in accordance with its terms (other than Default Interest), in effect immediately prior to, and without regard to the occurrence of the Maturity Date or the occurrence of a foreclosure of the Mortgage Loan or acceptance by the Trust (on behalf of the Certificateholders) and the Companion Loan Holders of a deed-in-lieu of foreclosure or comparable conversion of the Mortgage Loan, in respect of the Trust Loan or the C Notes, as applicable, on the last Payment Date (or Assumed Payment Date) prior to its foreclosure or acceptance of a deed-in-lieu, in each case as such terms may have been modified, and such Maturity Date may have been extended, in connection with a bankruptcy or similar proceeding involving the Borrower or otherwise or a modification, waiver or amendment granted or agreed to by the Servicer or Special Servicer, as if the Mortgage Loan had not become due on the Maturity Date or such foreclosure or acceptance of a deed-in-lieu of foreclosure or comparable conversion of the Mortgage Loan had not occurred.

 

“Assumed Payment Date”:  With respect to the Trust Loan for any calendar month following a delinquency in the payment of the Balloon Payment or the foreclosure of the Mortgage Loan or acceptance by the Trust of a deed-in-lieu of foreclosure or comparable conversion of the Mortgage Loan, the date that would have been the Payment Date in such calendar month if the Maturity Date or the foreclosure of the Mortgage Loan or acceptance by

 

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the Trust of a deed-in-lieu of foreclosure or comparable conversion of the Mortgage Loan had not occurred.

 

“Assumption Application Fees”:  With respect to the Mortgage Loan, any and all assumption application fees actually paid by or on behalf of the Borrower in accordance with the Mortgage Loan Documents, with respect to any application submitted to the Servicer or the Special Servicer for a proposed assumption or substitution transaction or proposed transfer of an interest in the Borrower.

 

“Assumption Fees”:  Any and all assumption fees actually paid by or on behalf of the Borrower in accordance with the Mortgage Loan Documents, with respect to any assumption or substitution agreement entered into by the Servicer or the Special Servicer or paid by or on behalf of the Borrower with respect to any transfer of an interest in the Borrower.

 

“Authenticating Agent”:  As defined in Section 8.11(a).

 

“Available Funds”:  On each Distribution Date, with respect to the Trust Loan, an amount equal to (i) all amounts (other than Yield Maintenance Premiums) received in respect of the Mortgage Loan during the related Collection Period or advanced in respect of interest with respect to such Distribution Date (including, without limitation, any Mortgage Loan Purchase Price, the Repurchase Price, Condemnation Proceeds, Insurance Proceeds and/or Liquidation Proceeds received by the Trust), plus (ii) if such Distribution Date is the Distribution Date occurring in March of each year (or February, if such Distribution Date is the final Distribution Date), Withheld Amounts to be withdrawn from the Interest Reserve Account for such Distribution Date, minus (iii) an amount equal to the applicable Withheld Amount in the case of the February Distribution Date and any January Distribution Date occurring in a year that is not a leap year (unless, in either case, such Distribution Date is the final Distribution Date), minus (iv) Trust Fund Expenses and certain other amounts and any portion of such amounts received in respect of the Mortgage Loan that are required to be distributed to the Companion Loan Holders pursuant to the terms of the Co-Lender Agreement and any other Available Funds Reduction Amount for such Distribution Date.

 

“Available Funds Reduction Amount”:  As of each Distribution Date, all amounts withdrawn on the related Remittance Date or during the related Collection Period from the Collection Account pursuant to Section 3.4(c).

 

“B Note”: The promissory notes designated as Note B-1 and Note B-2.

 

“Balloon Payment”:  The payment of the outstanding principal balance of the Mortgage Loan, Trust Loan or a Companion Loan, as applicable, together with all accrued and unpaid interest, due and payable on the Maturity Date or such other date on which the outstanding principal balance of the Mortgage Loan, the Trust Loan or the Companion Loans become due and payable, whether by declaration of acceleration, or otherwise.

 

“Barclays”: Barclays Capital Real Estate Inc., a Delaware corporation, and its successors in interest.

 

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“Barclays Capital”:  Barclays Capital Inc., a Connecticut corporation, and its successors-in-interest.

 

“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).  Each of the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and the Servicer, as applicable, 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 provide an Investor Certification.

 

“Borrower”:  As defined in the Introductory Statement.

 

“Borrower Related Party”:  The Borrower, the Mezzanine Borrower, any Restricted Holder, the Borrower Sponsor, the Guarantor (or any replacement guarantor), the Manager, the general partner or managing member of any of the foregoing or any of their respective Control Affiliates or agents.

 

“Borrower Sponsor”:  Xxxxxx X. Xxxxxxx.

 

“Business Day”:  Any day other than a Saturday, Sunday or any other day on which any of the following are not open for business: (a) national banks in New York, California, Kansas, Ohio or North Carolina, (b) the place of business of the Trustee, the Certificate Administrator, the Servicer, the Special Servicer, the Operating Advisor or the financial institution that maintains the Collection Account, the Foreclosed Property Account or any Reserve Account, or (c) the New York Stock Exchange or the Federal Reserve Bank of New York.

 

“C Note”: The promissory notes designated as Note C-1 and Note C-2.

 

“Cash Management Account”:  As defined in the Mortgage Loan Agreement.

 

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

 

“CERCLA”:  The Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S. C. §§ 9601 et seq., as amended.

 

“Certificate”:  Any Class A, Class B, Class C, Class D, Class E, Class F, Class G, Class J, Class HRR or Class R Certificate.

 

“Certificate Administrator”:  Xxxxx Fargo Bank, National Association, in its capacity as certificate administrator, or if any successor certificate administrator is appointed as herein provided, such certificate administrator.  Xxxxx Fargo Bank, National Association will perform its role as Certificate Administrator through its Corporate Trust Services division.

 

“Certificate Administrator Fee”:  With respect to the Trust Loan and for any Distribution Date, an amount accrued during the related Loan Interest Accrual Period at the

 

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Certificate Administrator Fee Rate on the outstanding principal balance of the Trust Loan as of the close of business on the Distribution Date in such Loan Interest Accrual Period; provided that such amounts shall be computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the Trust Loan is computed and shall be prorated for partial periods.  A portion of the Certificate Administrator Fee, namely the Trustee Fee, shall be payable to the Trustee.  For the avoidance of doubt, the Certificate Administrator Fee shall be deemed to be payable from the Lower-Tier REMIC.

 

“Certificate Administrator Fee Rate”:  With respect to the Trust Loan, a rate equal to 0.00280% per annum, calculated on the same interest accrual basis as the Trust Loan.  A portion of the Certificate Administrator Fee Rate shall constitute the Trustee Fee and shall be payable to the Trustee.

 

“Certificate Administrator’s Website”:  The internet website of the Certificate Administrator, initially located at xxx.xxxxxxx.xxx.

 

“Certificate Balance”:  With respect to each outstanding Class of Sequential Pay Certificates at any date, an amount equal to the aggregate initial Certificate Balance of such Class as set forth in the Introductory Statement less the sum of (a) all amounts distributed to Certificateholders of such Class on all previous Distribution Dates and treated under this Agreement as allocable to principal and (b) the aggregate amount of Realized Losses allocated to such Class of Certificates on all previous Distribution Dates, if any, pursuant to Section 4.1(g).  With respect to any individual Certificate in any Class, the product of (x) the Percentage Interest represented by such Certificate multiplied by (y) the Certificate Balance of such Class.

 

“Certificate Interest Accrual Period”:  With respect to any Distribution Date and with respect to each Class of Regular Certificates, the period from and including the 1st day of the calendar month immediately preceding the calendar month in which such Distribution Date occurs to and including the last day of such month immediately preceding the calendar month in which that Distribution Date occurs.  The initial Certificate Interest Accrual Period shall include accrued interest from December 1, 2019.

 

“Certificate Register” and “Certificate Registrar”:  The register maintained and the registrar appointed pursuant to Section 5.3(a).

 

“Certificateholder” or “Holder”:  With respect to any Certificate, the Person in whose name a Certificate is registered in the Certificate Register; provided, however, that solely for the purposes of providing, distributing or otherwise making available any reports, statements, communications or other information as required or permitted to be provided, distributed or made available to a Certificateholder under this Agreement, a Certificateholder shall include any Beneficial Owner to the extent that the Person providing, distributing or making available such reports, statements, communications or other information has received from such Beneficial Owner an Investor Certification that such Person is a Beneficial Owner; and provided, further that, solely for the purposes of giving any consent, waiver, request or demand or taking any action (including, without limitation, selecting or appointing a Directing Holder), any Certificate beneficially owned by the Servicer, the Special Servicer, the Trustee, the Certificate Administrator, any Borrower Related Party, the Manager or any of their sub-servicers, or any of

 

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their respective Affiliates or agents, shall be deemed not to be outstanding and the Voting Rights to which it is entitled and the Certificate Balance of such Certificate shall not be taken into account in determining whether the requisite percentage of Voting Rights and/or of the Certificate Balance of the Certificates or any Class of Certificates necessary to take any such action or effect any such consent, waiver, request or demand has been obtained; provided that the foregoing limitation will not be construed so as to limit or prevent a Controlling Class Certificateholder or the Directing Holder, solely based on it being (to the extent that it is) an Affiliate of the Special Servicer, from exercising any appointment, consent or consultation 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 the Servicer, the Trustee, the Certificate Administrator, any Borrower Related Party, the Manager or any of the subservicers or respective Affiliates or agents of the foregoing).  Notwithstanding the foregoing, for purposes of obtaining the consent of Certificateholders to an amendment of this Agreement, any Certificate beneficially owned by the Trustee, the Certificate Administrator, the Servicer, the Special Servicer or any of their respective Affiliates shall be deemed to be outstanding; provided that such amendment does not relate to the termination of, increase in compensation of or material reduction in obligations of, the Trustee, the Certificate Administrator, the Servicer, the Special Servicer or any of their Affiliates (other than solely in its capacity as a Certificateholder) in any material respect, in which case such Certificate shall be deemed not to be outstanding.  The Trustee, the Certificate Administrator and the Certificate Registrar may obtain and conclusively rely upon an Officer’s Certificate of the Depositor, the Servicer, the Special Servicer, the Certificate Administrator (in the case of the Trustee), the Trustee (in the case of the Certificate Administrator), the Borrower, a Borrower Related Party, the Manager, or any sub-servicer to determine whether a Certificate is beneficially owned by an Affiliate of any of them.

 

“Certificateholder Quorum” means, in connection with any solicitation of votes in connection with the replacement of the Special Servicer (other than at the recommendation of the Operating Advisor) described above, the holders of Certificates evidencing at least 50% of the aggregate Voting Rights (taking into account the application of any Appraisal Reduction Amounts to notionally reduce the Certificate Balance of the Certificates) of all Sequential Pay Certificates.

 

“CGMI”:  Citigroup Global Markets Inc., a New York corporation, and its successors-in-interest.

 

“Class”:  With respect to the Certificates, all of the Certificates bearing the same alphabetical and numerical class designation, and each Uncertificated Lower-Tier Interest.

 

“Class A Certificate”:  A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-1 hereto and designated as a Class A Certificate. 

 

“Class A Pass-Through Rate”:  As set forth in the Upper-Tier REMIC section of the Introductory Statement of this Agreement.

 

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“Class B Certificate”:  A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-2 hereto and designated as a Class B Certificate.

 

“Class B Pass-Through Rate”:  As set forth in the Upper-Tier REMIC section of the Introductory Statement of this Agreement.

 

“Class C Certificate”:  A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-3 hereto and designated as a Class C Certificate.

 

“Class C Pass-Through Rate”:  As set forth in the Upper-Tier REMIC section of the Introductory Statement of this Agreement.

 

“Class D Certificate”:  A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-4 hereto and designated as a Class D Certificate.

 

“Class D Pass-Through Rate”:  As set forth in the Upper-Tier REMIC section of the Introductory Statement of this Agreement.

 

“Class E Certificate”:  A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-5 hereto and designated as a Class E Certificate.

 

“Class E Pass-Through Rate”:  As set forth in the Upper-Tier REMIC section of the Introductory Statement of this Agreement.

 

“Class F Certificate”:  A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-6 hereto and designated as a Class F Certificate.

 

“Class F Pass-Through Rate”:  As set forth in the Upper-Tier REMIC section of the Introductory Statement of this Agreement.

 

“Class G Certificate”:  A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-7 hereto and designated as a Class G Certificate.

 

“Class G Pass-Through Rate”:  As set forth in the Upper-Tier REMIC section of the Introductory Statement of this Agreement.

 

“Class J Certificate”:  A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-8 hereto and designated as a Class J Certificate.

 

“Class J Pass-Through Rate”:  As set forth in the Upper-Tier REMIC section of the Introductory Statement of this Agreement.

 

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“Class HRR Certificate”:  A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-9 hereto and designated as a Class HRR Certificate.

 

“Class HRR Pass-Through Rate”:  As set forth in the Upper-Tier REMIC section of the Introductory Statement of this Agreement.

 

“Class HRR Regular Interest”:  The REMIC regular interest that corresponds to the Class HRR Certificates (excluding the Excess Liquidation Proceeds Option).

 

“Class LA Uncertificated Interest”:  A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LB Uncertificated Interest”:  A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LC Uncertificated Interest”:  A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LD-1 Uncertificated Interest”:  A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LD-2 Uncertificated Interest”:  A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LE Uncertificated Interest”:  A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LF Uncertificated Interest”:  A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LG Uncertificated Interest”:  A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LJ Uncertificated Interest”:  A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

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“Class LHRR Uncertificated Interest”:  A regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

 

“Class LT-R Interest”:  The residual interest in the Lower-Tier REMIC.  The Class LT-R Interest will be represented by the Class R Certificates.

 

“Class R Certificate”:  A Certificate executed and authenticated by the Certificate Administrator, in substantially the form set forth in Exhibit A-10 hereto and designated as a Class R Certificate.  The Class R Certificates have neither a Certificate Balance nor a Pass-Through Rate.  The Class R Certificates will evidence the Class LT-R and Class UT-R Interests.

 

“Class UT-R Interest”:  The residual interest in the Upper-Tier REMIC.  The Class UT-R Interest will be represented by the Class R Certificates.

 

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

 

“Clearstream”:  As defined in Section 5.2(a).

 

“Closing Date”:  December 19, 2019.

 

“Code”:  The Internal Revenue Code of 1986, as amended, and as it may be further amended from time to time, any successor statutes thereto, and applicable U.S. Department of the Treasury regulations issued pursuant thereto in temporary or final form and any proposed regulations thereunder, to the extent that, by reason of their proposed effective date, such proposed regulations would apply to the Trust Fund.

 

“Co-Lender Agreement”: As defined in the Introductory Statement.

 

“Collateral”:  The Property securing the Mortgage Loan, the Mortgage Loan Documents assigned with respect to the Mortgage Loan, the Reserve Accounts (and all sums held, deposited or invested therein and all proceeds thereof) with respect to the Mortgage Loan and all other collateral that is subject to security interests and liens granted to secure the Mortgage Loan under the terms of the Mortgage Loan Documents.

 

“Collection Account”:  As defined in Section 3.4(a).

 

“Collection Period”:  (i) With respect to the first Distribution Date following the Closing Date, the period commencing on and including the Closing Date and ending on and including the Determination Date relating to such Distribution Date, and (ii) with respect to any other Distribution Date, the period commencing on and including the date immediately following the Determination Date relating to the immediately preceding Distribution Date and ending on and including the Determination Date relating to such Distribution Date.

 

“Commission”:  The Securities and Exchange Commission.

 

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“Companion Loan”:  As defined in the Introductory Statement.

 

“Companion Loan A Notes”:  The promissory notes designated as Note X-0, Xxxx X-0, Xxxx X-0, Note A-6, Note A-7 and Note A-8.

 

“Companion Loan Advance”:  With respect to a 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 master servicer or trustee with respect to such Other Securitization Trust.

 

“Companion Loan Distribution Account”: As defined in Section 3.4(a).

 

“Companion Loan Holder”:  The holder of a Companion Loan.

 

“Companion Loan Notes”:  As defined in the Introductory Statement.

 

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

 

“Companion Loan Rating Agency Confirmation”:  With respect to any matter involving the servicing and administration of a Companion Loan as to which any Companion Loan Securities exist or other Relevant Action, confirmation in writing (which may be in electronic form) by each applicable Companion Loan Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then current rating assigned to any class of such Companion Loan Securities (if then rated by such Companion Loan Rating Agency); provided that upon receipt of a written waiver or other acknowledgment from a Companion Loan Rating Agency indicating its decision not to review or declining to review the matter for which the Companion Loan Rating Agency Confirmation is sought (such written notice, a “Companion Loan Rating Agency Declination”), or as otherwise provided in Section 3.29(b) of this Agreement, the requirement for the Companion Loan Rating Agency Confirmation from the applicable Companion Loan Rating Agency with respect to such matter shall not apply. With respect to any matter affecting any Companion Loan, so long as such Companion Loan (or any portion thereof) is subject to a securitization transaction, any Rating Agency Confirmation will also refer to confirmation in writing (which may be in electronic format) 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 securities backed by such Companion Loan or any portion thereof (if then rated by such rating agency); provided that a written waiver (which may be in electronic format) or other acknowledgment from such rating agency indicating its decision not to review or to decline to review the matter for which the Rating Agency Confirmation is sought will be deemed to satisfy the requirement for the Rating Agency Confirmation from the rating agency with respect to such matter.

 

“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 a Companion Loan (or a portion thereof).

 

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“Component”:  Component B-A and Component B-HRR.

 

“Component B-A”: With respect to the Mortgage Loan, the portion of the B Notes with an original principal balance of $494,000,000 that accrues interest at a rate of 2.724570000% per annum.

 

“Component B-HRR”: With respect to the Mortgage Loan, the portion of the B Notes with an original principal balance of $214,000,000 that accrues interest at a rate of 4.257050000% per annum.

 

“Component Rate”:  The interest rate that accrues on Component B-A or Component B-HRR, as applicable, as set forth in their respective definitions.

 

“Condemnation Proceeds”:  The portion of the Net Proceeds relating to a Condemnation (as defined in the Mortgage Loan Agreement).

 

“Confidential Information”:  With respect to the Servicer or the Special Servicer, as applicable, all material non-public information obtained in the course of and as a result of such Person’s performance of its duties as Servicer or Special Servicer, as applicable, with respect to the Mortgage Loan, the Borrower and the Property, unless such information (i) was already in the possession of such Person prior to being disclosed to such Person, (ii) is or becomes available to such Person from a source other than its activities as Servicer or Special Servicer, as applicable, (iii) is or becomes generally available to the public other than as a result of a disclosure by the Servicer Servicing Personnel or Special Servicer Servicing Personnel or (iv) is required to be disclosed by a court or administrative order or lawful discovery demand, provided such Person shall use reasonable efforts to obtain confidential treatment thereof.  Notwithstanding the foregoing, the Trustee and the Certificate Administrator shall be permitted to comply with their respective obligations hereunder to make information available to the extent that such information was received by it in its capacity as Trustee or Certificate Administrator, as applicable.

 

“Consultation Termination Event”:  The occurrence when the Class G Certificates no longer have a then-outstanding Certificate Balance at least equal to 25% of the initial Certificate Balance of such Class, without regard to the application of any Trust Appraisal Reduction Amounts.

 

“Control Affiliate”:  As to any particular Person, any Person, directly or indirectly through one or more intermediaries, Controlling, Controlled by or under common Control with, such Person in question.  As used solely in this definition of “Control Affiliate”, “Control” means (a) the ownership, directly or indirectly, in the aggregate of 25% or more of the beneficial ownership interests of an entity, or (b) the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise (other than possession of voting or control rights granted to the Mezzanine Lender pursuant to the Mezzanine Loan documents, the exercise of which is contingent upon the occurrence and continuance of a Mezzanine Loan event of default, unless and until so exercised by the Mezzanine Lender).  “Controlled by,” “Controlling” and “under common Control with” have the respective correlative meanings to

 

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such terms.  The Trustee and/or the Certificate Administrator may obtain and rely upon a certification of the Borrower, the Borrower Sponsor, any Guarantor (or any replacement guarantor), any Restricted Holder, as applicable, to determine whether any Person is a Control Affiliate.

 

“Control Appraisal Period”: As defined in the Co-Lender Agreement.

 

“Control Termination Event”:  With respect to any date of determination, if the Certificate Balance of the Class G Certificates on such date (taking into account the application of any Appraisal Reduction Amounts to notionally reduce the Certificate Balance of such) is less than 25% of the initial Certificate Balance of such Class.  If a Control Termination Event no longer exists, then the Directing Holder shall regain all the consent and direction rights of the Directing Holder set forth in this Agreement.

 

“Controlling Class”:  The most subordinate of the Class G, Class J or Class HRR Certificates so long as such Class has an outstanding Certificate Balance (as reduced by any principal payments and Realized Losses and notionally reduced by any Appraisal Reduction Amounts allocable to such Class) that is equal to or greater than 25% of the initial Certificate Balance of such Class.  No other Class of Certificates will be eligible to act as the Controlling Class or appoint a Directing Holder.  If a Consultation Termination Event has occurred, there shall be no Controlling Class and no Directing Holder.

 

“Controlling Class Certificateholder”:  Each Holder (or Beneficial Owner, if applicable) of a Certificate of the Controlling Class as determined by the Certificate Registrar, from time to time, upon request by any party hereto.  The Trustee, the Servicer, the Special Servicer or the Operating Advisor may from time to time request that the Certificate Administrator provide a list of the Holders (or Beneficial Owners, if applicable) of the Controlling Class and the Certificate Administrator shall promptly order and provide such list at the expense of the Trust but without charge to such Trustee, Servicer, Special Servicer or Operating Advisor, as applicable.  The Trustee, the Servicer, the Special Servicer or the Operating Advisor shall be entitled to rely on any such list so provided.  Notwithstanding the foregoing, for purposes of determining the Directing Holder, exercising any rights of the Controlling Class or the Directing Holder or receiving Asset Status Reports or any other information under this Agreement other than Distribution Date Statements, any holder of any interest in a Controlling Class Certificate who is a Borrower Related Party, the Manager or an agent or Affiliate of the foregoing will not be deemed to be a Holder of the Controlling Class and will not be entitled to exercise such rights or receive such information, and any Directing Holder previously appointed or selected by such Holder will thereafter not be entitled to exercise any rights of the Directing Holder.  If, as a result of the preceding sentence, no Holder of Controlling Class Certificates would be eligible to exercise such rights, there will be no Directing Holder or Controlling Class.

 

“Controlling Persons”:  As defined in Section 6.3(a).

 

“Corporate Trust Office”:  The principal corporate trust office of the Trustee or the Certificate Administrator, as applicable, at which at any particular time its corporate trust business shall be administered, which office at the date of the execution of this Agreement is

 

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located (i) to the Certificate Administrator with respect to Certificate transfers and surrenders, at 000 Xxxxx 0xx Xxxxxx, 0xx Xxxxx MAC N9300-070, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:  CTS : Certificate Transfers (CMBS) MRCD 2019-PARK; (ii) with respect to the Trustee at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:  Corporate Trust Services - MRCD 2019-PARK; and (iii)  to the Certificate Administrator for all other purposes, at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:  Corporate Trust Services (CMBS), MRCD 2019-PARK, telecopy number (000) 000-0000, or the principal corporate trust office of any successor Trustee or Certificate Administrator, as applicable, qualified and appointed pursuant to this Agreement.

 

“Credit Risk Retention Rules”: The Credit Risk Retention Regulations, 79 Fed. Reg. 77601, pages 77740-77766 (Dec. 24, 2014), jointly promulgated by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the Securities and Exchange Commission, and the Department of Housing and Urban Development (the “Agencies”) (which such joint final rule has been codified, inter alia, at 12 C.F.R. § 244) to implement the credit risk retention requirements under Section 15G of the Securities Exchange Act of 1934 (as added by Section 941 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act), as such regulations may be amended from time to time, and subject to such clarification and interpretation as have been provided by such Agencies, whether in the adopting release, 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®”:  The Commercial Real Estate Finance Council®, 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, 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 one of whose principal purposes 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 reasonably acceptable to the Servicer, the Special Servicer, the Certificate Administrator, and the Trustee.

 

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

 

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“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® Bond Level File”:  The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Bond Level File” 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 recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Certificate Administrator.

 

“CREFC® Collateral Summary File”:  The report substantially in the form of, and containing the information called for in, the downloadable form of the “Collateral Summary File” 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 recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Certificate Administrator.

 

“CREFC® Comparative Financial Status Report”:  A report substantially in the form of, and containing the information called for in, the downloadable form of the “Comparative Financial Status Report” available as of the Closing Date on the CREFC® Website, or such other form for the presentation of such information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

 

“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 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 and is reasonably acceptable to the Servicer and the Special Servicer.

 

“CREFC® Financial File”:  A report substantially in the form of, and containing the information called for in, the downloadable form of the “Financial File” 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 recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer.

 

“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.

 

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“CREFC® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report”:  A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Loan Modification/Forbearance and Corrected Mortgage Loan 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 recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

 

“CREFC® Intellectual Property Royalty License Fee”: A fee, payable on a monthly basis, computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the Trust Loan is computed at the CREFC® Intellectual Property Royalty License Fee Rate (prorated for partial periods).

 

“CREFC® Intellectual Property Royalty License Fee Rate”: With respect to the Trust Loan, a rate equal to 0.0005% per annum.

 

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

 

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

 

“CREFC® Loan Level Reserve/LOC Report”:  The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Level Reserve/LOC 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 recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer.

 

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

 

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

 

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

 

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Periodic Update File” 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 recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer, the Special Servicer and the Certificate Administrator.

 

“CREFC® Loan Setup File”:  The report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Setup File” 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 recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer, the Special Servicer and the Certificate Administrator.

 

“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 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 recommended by the CREFC® for commercial mortgage securities transactions generally and is acceptable to the Servicer or the Special Servicer, as applicable, and in any event, shall present the computations made in accordance with the methodology described in such form to “normalize” the full year and year to date net operating income and debt service coverage numbers used in the other reports required by this Agreement.

 

“CREFC® Operating Statement Analysis Report”:  A report prepared for the Property substantially in the form of, and containing the information called for in, the downloadable form of the “Operating Statement Analysis Report” available as of the Closing Date on the CREFC® Website or in such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer.

 

“CREFC® Property File”:  A report substantially in the form of, and containing the information called for in, the downloadable form of the “Property File” 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 recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

 

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

 

“CREFC® REO Liquidation Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “REO Liquidation

 

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Report” available as of the Closing Date on the CREFC® Website, or in such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

 

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

 

“CREFC® Reports”:  Collectively refers to the following reports as such may be amended, updated or supplemented from time to time as part of the CREFC® “IRP” (Investor Reporting Package), and any additional reports that become part of the CREFC® IRP from time to time (if agreed to by the parties hereto):

 

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

 

(ii)           the following twenty-one supplemental reports and templates:  (i) CREFC® Comparative Financial Status Report, (ii) CREFC® Delinquent Loan Status Report, (iii) CREFC® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report, (iv) CREFC® Operating Statement Analysis Report, (v) CREFC® NOI Adjustment Worksheet, (vi) CREFC® REO Status Report, (vii) CREFC® Servicer Watch List, (viii) CREFC® Loan Level Reserve/LOC Report, (ix) CREFC® Advance Recovery Report, (x) CREFC® Total Loan Report, (xi) CREFC® Appraisal Reduction Template, (xii) CREFC® Servicer Realized Loss Template, (xiii) CREFC® Reconciliation of Funds Template, (xiv) CREFC® Historical Bond/Collateral Realized Loss Reconciliation Template, (xv) CREFC® Historical Liquidation Loss Template, (xvi) CREFC® Interest Shortfall Reconciliation Template, (xvii) CREFC® Servicer Remittance to Certificate Administrator Template, (xviii) CREFC® Significant Insurance Event Template, (xix) CREFC® Loan Liquidation Report, (xx) CREFC® REO Liquidation Report and (xxi) CREFC® Loan Modification Report; and

 

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

 

“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 Remittance to Certificate Administrator Template”: A report substantially in the form of, and containing the information called for in, the downloadable form

 

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of the “Servicer Remittance to Certificate Administrator Template” available and effective from time to time on the CREFC® Website.

 

“CREFC® Servicer Watch List”:  For any Determination Date, a report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Watch List” available as of the Closing Date on the CREFC® Website, or in such other final form for the presentation of such information and containing such additional information as may from time to time be promulgated as recommended by the CREFC® for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Servicer Watch List” available as of the Closing Date on the CREFC® Website, is reasonably acceptable to the Servicer.

 

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

 

“CREFC® Special Servicer Loan File”:  The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Special Servicer Loan File” 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 recommended by the CREFC® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

 

“CREFC® Total Loan Report”:  A monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Total Loan Report” available as of the Closing Date on the CREFC® Website, or in such other form for the presentation of such information and containing such additional information as may from time to time be adopted by the CREFC® for commercial mortgage-backed securities transactions and is reasonably acceptable to the Servicer.

 

“CREFC® Website”:  CREFC®’s Internet website located at “xxx.xxxxx.xxx” or such other primary Internet website as the CREFC® may establish for dissemination of its report forms.

 

“CREFI”:  Citi Real Estate Funding Inc., a New York corporation, and its successors-in-interest.

 

“Current Interest Distribution Amount”:  With respect to any Distribution Date for (x) any Regular Certificate, interest accruing during the related Certificate Interest Accrual Period at the applicable Pass-Through Rate for such Certificate Interest Accrual Period on the outstanding Certificate Balance of such Certificate as of the prior Distribution Date (after giving effect to distributions of principal and allocations of Realized Losses on such prior Distribution Date), and (y) any Uncertificated Lower-Tier Interest, interest accruing during the applicable Certificate Interest Accrual Period at the applicable Pass-Through Rate for such Certificate Interest Accrual Period on the then-outstanding Lower-Tier Principal Amount of such Certificate as of the prior Distribution Date (after giving effect to distributions of principal and allocations

 

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of Realized Losses on such prior Distribution Date) or, solely in connection with the initial Distribution Date, as of the Closing Date. 

 

“Custodian”:  The Certificate Administrator, in its capacity as the Custodian, performing its role through the document custody division of the Certificate Administrator.

 

“Cut-off Date”: December 9, 2019.

 

“DBRS”:  DBRS, Inc., and its successors-in-interest.

 

“Default Interest”:  With respect to any Payment Date, upon the occurrence and during the continuance of a Mortgage Loan Event of Default, interest accrued on the Trust Loan or Mortgage Loan, as applicable, at the excess of the Default Rate over the applicable Note Rate during the related Loan Interest Accrual Period on the outstanding principal balance of such Note and, to the extent permitted by law, all accrued and unpaid interest on the Trust Loan or Mortgage Loan, as applicable, any other amounts then due and payable in respect of the Mortgage Loan, calculated from the date such payment was due without regard to any grace or cure periods.

 

“Default Rate”:  As defined in the Mortgage Loan Agreement.

 

“Defect”: As defined in the Trust Loan Purchase Agreement.

 

“Deficient Exchange Act Deliverable”: With respect to the Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee and each Servicing Function Participant and Additional Servicer retained by it (other than a Sub-Servicer set forth on Exhibit Z), any item (x) regarding such party, (y) prepared by such party or any registered public accounting firm, attorney or other agent retained by such party to prepare such information and (z) delivered by or on behalf of such party pursuant to the delivery requirements under Article 13 of this Agreement that does not conform to the applicable reporting requirements under the Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder.

 

“Definitive Certificate”:  Any Certificate in fully registered certificated form without interest coupons.

 

“Delivery Date”:  As defined in Section 2.1(b).

 

“Depositor”:  Barclays Commercial Mortgage Securities LLC, a Delaware limited liability company, and its successors-in-interest.

 

“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.

 

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“Determination Date”:  With respect to each Distribution Date, the ninth (9th) day of the calendar month in which such Distribution Date occurs or, if such ninth (9th) day is not a Business Day, the immediately succeeding Business Day.

 

“Directing Holder”:  The Directing Holder shall be (i) prior to a Control Appraisal Period, (a) if Note C-1 is not included in a securitization, the holder of Note C-1 or (b) if Note C-1 is included in a securitization trust, the entity identified as “directing certificateholder” or analogous entity in the trust agreement governing the Note C Securitization and (ii) during a Control Appraisal Period and prior to a Control Termination Event, the Controlling Class Certificateholder (or its representative) as identified to the Certificate Administrator as being selected by the Majority Controlling Class Certificateholders, as determined by the Certificate Registrar from time to time.  After the occurrence and during the continuance of a Control Termination Event, the Directing Holder shall only retain its consultation rights to the extent specifically provided for in this Agreement.  After the occurrence of a Consultation Termination Event, there shall be no Directing Holder and no party will be entitled to exercise any of the rights of the Directing Holder.  As of the Closing Date, the Directing Holder is Western Asset Management Company, LLC. A  Borrower Related Party may not be appointed as or act as a Directing Holder. 

 

“Directing Holder Asset Status Report Approval Process”:  As defined in Section 3.10(j).

 

“Directly Operate”:  With respect to the Foreclosed 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 Foreclosed Property, the holding of the Foreclosed Property primarily for sale to customers, the use of the Foreclosed Property in a trade or business conducted by the Trust Fund or the performance of any construction work on the Foreclosed Property other than through an Independent Contractor; provided, however, that the Foreclosed Property shall not be considered to be Directly Operated solely because the Trustee (or the Special Servicer on behalf of the Trustee) establishes rental terms, chooses tenants, enters into or renews leases, deals with taxes and insurance or makes decisions as to repairs or capital expenditures with respect to the Foreclosed Property or takes other actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).

 

“Disclosable Special Servicer Fees”:  With respect to the Mortgage Loan or Foreclosed Property, any compensation and other remuneration (including, without limitation, in the form of commissions, brokerage fees, or rebates, or as a result of any other fee-sharing arrangement) received or retained by the Special Servicer or any of its Affiliates that is paid by any Person (including, without limitation, the Trust, the Borrower, the Manager, any guarantor or indemnitor or any other Borrower Related Party in respect of the Mortgage Loan or any of their Affiliates and any purchaser of the Mortgage Loan or a Foreclosed Property) in connection with the disposition, workout or foreclosure of the Mortgage Loan, the management or disposition of the Foreclosed Property, and the performance by the Special Servicer or any such Affiliate of any other special servicing duties under this Agreement, other than (1) any Permitted Special Servicer/Affiliate Fees and (2) any compensation to which the Special Servicer is entitled pursuant to Section 3.17 of this Agreement; provided, that any compensation and other

 

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remuneration that the Servicer or Certificate Administrator is permitted to receive or retain pursuant to this Agreement in connection with its duties in such capacity will not be Disclosable Special Servicer Fees.

 

“Disclosure Parties”:  As defined in Section 8.14(c).

 

“Disqualified Non-U.S. Person”:  With respect to a Class R Certificate, any Non-U.S. Person or agent thereof other than (i) a Non-U.S. Person that holds such Class R Certificate in connection with the conduct of a trade or business within the United States and has furnished the transferor and the Certificate Administrator with an effective IRS Form W-8ECI or other prescribed form or (ii) a Non-U.S. Person that has delivered to both the transferor and the Certificate Administrator an Opinion of Counsel of a nationally recognized tax counsel to the effect that the transfer of such Class R Certificate to it is in accordance with the requirements of the Code and the regulations promulgated thereunder and that such transfer of such Class R Certificate will not be disregarded for federal income tax purposes under Treasury Regulations Section 1.860G-3.

 

“Disqualified Organization”:  Either (a) the United States, a State, or any agency or instrumentality of any of the foregoing (other than an instrumentality that is a corporation if all of its activities are subject to tax and, except for the FHLMC, a majority of its board of directors is not selected by any such governmental unit), (b) a foreign government, International Organization or agency or instrumentality of either of the foregoing, (c) an organization that is exempt from tax imposed by chapter 1 of the Code (including the tax imposed by Code Section 511 on unrelated business taxable income) on any excess inclusions (as defined in Section 860E(c)(1)) of the Code with respect to the Class R Certificates (except certain farmers’ cooperatives described in Section 521 of the Code), (d) rural electric and telephone cooperatives described in Section 1381(a)(2) of the Code or (e) any other Person so designated by the Certificate Administrator based upon an Opinion of Counsel to the effect that any transfer of a Class R Certificate to such Person may cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding.  The terms “United States,” “State” and “International Organization” have the meanings set forth in Section 7701 of the Code or successor provisions.

 

“Distribution Account”:  As defined in Section 3.5(a).

 

“Distribution Date”:  The 15th day of each calendar month or, if such 15th day is not a Business Day, the immediately succeeding Business Day, beginning in January 2020. The first Distribution Date is expected to be January 15, 2020.

 

“Distribution Date Statement”:  As defined in Section 4.4(a).

 

“Distribution Priorities”:  As defined in Section 4.1(a).

 

“Drexel”:  Xxxxxx Xxxxxxxx, LLC, a Pennsylvania limited liability company, and its successors in interest.

 

“Due Diligence Service Provider”: As defined in Section 8.14(b).

 

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“Eligible Account”:  A separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state-chartered depository institution or trust company that complies with the definition of Eligible Institution, (b) a segregated trust account or accounts maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity, the long-term unsecured debt obligations or deposits of which are rated at least “A” by Fitch (to the extent rated by Fitch), if the deposits are to be held in such account for thirty (30) days or more, and the short-term debt obligations or deposits of which have a short-term rating of not less than “F1” from Fitch (to the extent rated by Fitch), if the deposits are to be held in such account for less than thirty (30) days or (c) such other account or accounts not listed in clauses (a) or (b) above with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency.  An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.  If the holding institution for an account ceases to meet the requirements of this definition for an “Eligible Account”, then the party responsible for administering such account hereunder shall move such account to a holding institution meeting such requirements within 30 days.

 

“Eligible Institution”: (a) A depository institution or trust company, (1) the short-term unsecured debt obligations or commercial paper of which are rated at least “F1” by Fitch in the case of accounts in which funds are held for 30 days or less and (2) in the case of accounts in which funds are held for more than 30 days, the long-term unsecured debt obligations of which are rated at least “A” by Fitch (or “A-” with respect to KeyBank National Association) or (c) an account maintained with any other insured depository institution that is the subject of a Rating Agency Confirmation, from each Rating Agency for which the minimum rating is not met, with respect to any account listed in the clauses above, or from each Rating Agency, with respect to any account other than one listed in the clauses above.

 

“Eligible Operating Advisor”: An entity (a) that is a special servicer or operating advisor on a commercial mortgage-backed securities transaction rated by the Rating Agencies (including, in the case of the Operating Advisor, this transaction) but has not been special servicer or operating advisor on a transaction for which any Rating Agency has qualified, downgraded or withdrawn its rating or ratings of, one or more classes of certificates for such transaction citing servicing concerns with the special servicer or operating advisor, as applicable, as the sole or a material factor in such rating action; (b) that can and will make the representations and warranties of the Operating Advisor set forth in Section 2.8, including to the effect that it possesses sufficient financial strength to fulfill its duties and responsibilities pursuant to this Agreement over the life of the Trust; (c) that is not (and is not Risk Retention Affiliated with) the Depositor, the Trust Loan Sellers, the Trustee, the Certificate Administrator, the Servicer, the Special Servicer, the Borrower Sponsor, any Borrower, the Guarantor, the Third Party Purchaser, the Directing Holder, or any of their respective Risk Retention Affiliates; (d) that has not been paid by the Special Servicer or successor special servicer any fees, compensation or other remuneration (x) in respect of its obligations hereunder or (y) for the appointment or recommendation for replacement of a successor special servicer to become a special servicer under this Agreement; (e) that (x) has been regularly engaged in the business of analyzing and advising clients in commercial mortgage-backed securities matters and that has at least five (5) years of experience in collateral analysis and loss projections and (y) has at least five (5) years of experience in commercial real estate asset management and experience in the

 

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workout and management of distressed commercial real estate assets; and (f) that does not directly or indirectly, through one or more Affiliates or otherwise, own or have derivative exposure in any interest in any Certificates, the Mortgage 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.

 

“Environmental Indemnity”:  As defined in the Mortgage Loan Agreement.

 

“ERISA”:  The Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder.

 

“ERISA Plan”:  As defined in Section 5.3(q).

 

“Euroclear”: As defined in Section 5.2(a).

 

“Exchange Act”:  The Securities Exchange Act of 1934, as amended from time to time.

 

“Excess Liquidation Proceeds Option”:  As defined in Section 3.14(f).

 

“Excess Liquidation Purchase Price”:  Without duplication, the sum of (i) the unpaid principal balance of the Mortgage Loan, (ii) accrued and unpaid interest on each Note or Component, as applicable, at the applicable Note Rate or Component Rate, respectively (in each case, exclusive of the Default Rate), to and including the last day of the related Interest Accrual Period in which the purchase is to occur, (iii) unreimbursed Property Protection Advances and Administrative Advances together with interest on such Advances, (iv) any interest accrued on any Monthly Payment Advance made on the Trust Loan or the C Notes by a party to the Trust and Servicing Agreement or any interest accrued on any monthly payment advance made by a servicer, special servicer or trustee with respect to a Senior Pari Passu Non-Trust Note, in each case, at the rate specified therein, (v) any unpaid Trust Fund Expenses or trust fund expenses of any Senior Pari Passu Non-Trust Note’s trust with respect to the Mortgage Loan, and (vi) any other expenses reasonably incurred or expected to be incurred by the Servicer, the Special Servicer, the Certificate Administrator, the Custodian or the Trustee arising out of the sale of the Foreclosed Property, including Liquidation Fees.

 

“Excess Servicing Fee Right”:  With respect to the Mortgage Loan (and any successor Foreclosed Property with respect thereto), the right to receive Excess Servicing Fees.  In the absence of any transfer of the Excess Servicing Fee Right, the Servicer shall be the owner of such Excess Servicing Fee Right.

 

“Excess Servicing Fees”:  With respect to the Mortgage Loan (and any successor Foreclosed Property with respect thereto), that portion of the Servicing Fees that accrue at a per annum rate equal to 0.00125%.

 

“Extended Period”:  As defined in Section 12.2(b).

 

“Extended Resolution Period”: As defined in Section 2.9(a).

 

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“Extension”:  As defined in Section 12.2(b).

 

“FHLMC”:  The Federal Home Loan Mortgage Corporation and its successors-in-interest.

 

“Fiduciary”:  As defined in Section 5.3(s).

 

“Final Asset Status Report”:  With respect to the Specially Serviced Mortgage Loan, the initial Asset Status Report (together with such other data or supporting information provided by the Special Servicer to the Directing Holder, that does not include any communication (other than the related Asset Status Report) between the Special Servicer and Directing Holder with respect to such Specially Serviced Mortgage Loan) required to be delivered by the Special Servicer by the Initial Delivery Date and any Subsequent Asset Status Report, in each case, in the form fully approved or deemed approved, if applicable, by the Directing Holder pursuant to the Directing Holder Asset Status Report Approval Process following the completion of the ASR Consultation Process. For the avoidance of doubt, the Special Servicer may issue more than one Final Asset Status Report with respect to the Specially Serviced Mortgage Loan in accordance with the procedures described above. Each Final Asset Status Report will be labeled or otherwise identified or communicated as being final.  With respect to the determination of whether an Asset Status Report is a Final Asset Status Report, each of the Operating Advisor and the Note C Operating Advisor is entitled to rely solely on the determination of the Special Servicer.

 

“Final Recovery Determination”:  As defined in Section 3.7.

 

“Fitch”:  Fitch Ratings, Inc., and its successors in interest.

 

“FNMA”:  The Federal National Mortgage Association and its successors-in-interest.

 

“Foreclosed Companion Loan”: Each Companion Loan while the Property is a Foreclosed Property.

 

“Foreclosed Property”:  The Property or other Collateral securing the Mortgage Loan, title to which has been acquired on behalf of or in the name of the Trustee on behalf of the Trust and Companion Loan Holders through foreclosure, deed-in-lieu of foreclosure or otherwise.

 

“Foreclosed Property Account”:  The account or accounts established and maintained by the Special Servicer pursuant to Sections 3.6 and 3.14.

 

“Foreclosure LLC”:  As defined in Section 3.14(f).

 

“Foreclosure Proceeds”:  Proceeds, net of any related expenses of the Servicer, Special Servicer, the Certificate Administrator and/or the Trustee, received in respect of the Foreclosed Property (including, without limitation, proceeds from the operation or rental of the Foreclosed Property) prior to the final liquidation of the Foreclosed Property.

 

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“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 Y hereto.

 

“Global Certificate”:  As defined in Section 5.2(b).

 

“Guarantor”:  As defined in the Mortgage Loan Agreement.

 

“Guaranty”:  As defined in the Mortgage Loan Agreement.

 

“Impermissible Operating Advisor Affiliate” : As defined in Section 2.12.

 

“Impermissible Risk Retention Affiliate”: As defined in Section 2.12.

 

“Impermissible TPP Affiliate”: As defined in Section 2.12.

 

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

 

“Independent Appraiser”:  An Independent professional real estate appraiser who (i) is a member in good standing of the Appraisal Institute, (ii) if the state in which the Property or Foreclosed Property are located certifies or licenses appraisers, is certified or licensed in such state, and (iii) has a minimum of five (5) years’ experience in the appraisal of comparable properties in the geographic area in which the Property is located.

 

“Independent Contractor”:  Either (i) any Person (other than the Special Servicer or Servicer) that would be an “independent contractor” with respect to the Lower-Tier REMIC or the Upper-Tier 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 test set forth in that Section of the Code shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of any Class of Certificates or 35% or more of the aggregate value of all Classes of Certificates or such other interest in the Certificates as is set forth in an Opinion of Counsel, which shall, at no expense to the Trustee, the Certificate Administrator, the Special Servicer, the Servicer, the Operating Advisor or the Trust Fund, be delivered to the Trustee, the Certificate Administrator, the Special Servicer, the Servicer or the Operating Advisor on behalf of the Trustee); provided that neither the Lower-Tier REMIC nor the Upper-Tier REMIC receives or derives 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), or (ii) any other Person (including the Special Servicer or the Servicer) if the Trustee, the Certificate Administrator and the Operating Advisor (or the Servicer or the Special Servicer on behalf of the Trustee) has received an Opinion of Counsel which shall, at no expense to the Trustee, the Certificate Administrator, the Special Servicer, the Servicer (unless the Special

 

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Servicer or the Servicer is providing the Opinion of Counsel with respect to itself), the Operating Advisor or the Trust Fund, be to the effect that the taking of any action in respect of the Foreclosed 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 Foreclosed 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 Foreclosed Property to fail to qualify as Rents from Real Property.

 

“Initial Delivery Date”:  As defined in Section 3.10(i).

 

“Initial Purchasers”:  Barclays Capital, CGMI and Drexel.

 

“Initial Resolution Period”:  As defined in Section 2.9(a).

 

“Inquiry”: As defined in Section 4.5(a)(i).

 

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

 

“Insurance Proceeds”:  (a) The portion of Net Proceeds paid as a result of a Casualty (as defined in the Mortgage Loan Agreement) other than amounts to be applied to the restoration, preservation or repair of the Property or to be released to the Borrower each in accordance with the terms of the Mortgage Loan Agreement, or if not required to be so applied or so released under the terms of the Mortgage Loan Agreement, other than amounts applied to the restoration, preservation or repair of the Property in accordance with Accepted Servicing Practices, (b) amounts paid by any insurer pursuant to any insurance policy required to be maintained by the Servicer pursuant to Section 3.11, to the extent related to this Agreement only or (c) any other amounts paid by an insurer pursuant to any insurance policy required to be maintained by the Borrower, to the extent allocable to the Mortgage Loan under the Mortgage Loan Documents.

 

“Intercreditor Agreement”:  The Intercreditor Agreement, dated as of the Origination Date, among the Lenders and the Mezzanine Lender, as may be further amended from time to time.

 

“Interest Distribution Amount”:  With respect to any Distribution Date for any Class of Regular Certificates or Uncertificated Lower-Tier Interest, the sum of the Current Interest Distribution Amount for such Distribution Date and such Class of Certificates or Uncertificated Lower-Tier Interest plus the aggregate unpaid Interest Shortfalls in respect of prior Distribution Dates for such Class of Certificates or Uncertificated Lower-Tier Interest.

 

“Interest Reserve Account”:  As defined in Section 3.4(e).

 

“Interest Shortfall”:  With respect to any Distribution Date for any Class of Regular Certificates or Uncertificated Lower-Tier Interest, the amount by which the Current Interest Distribution Amount for such Class of Certificates or Uncertificated Lower-Tier Interest

 

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and such Distribution Date exceeds the portion actually paid in respect of such Class of Certificates or Uncertificated Lower-Tier Interest on such Distribution Date.

 

“Interested Person”:  As defined in Section 3.16(a)(ii).

 

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

 

“Investment Account”:  As defined in Section 3.8(a).

 

“Investment Representation Letter”:  A letter substantially in the form attached hereto as Exhibit P.

 

“Investment Decisions”:  Investment, trading, lending or other financial decisions, strategies or recommendations with respect to Investments, whether on behalf of the Servicer or any Affiliate thereof, the Special Servicer or any Affiliate thereof, the Certificate Administrator or any Affiliate thereof, as applicable, or any Person on whose behalf the Servicer or any Affiliate thereof or the Special Servicer or any Affiliate thereof has discretion in connection with Investments.

 

“Investor Certification”:  A certificate representing that such Person executing the certificate is a Certificateholder, a Beneficial Owner of a Certificate, the Directing Holder, a Companion Loan Holder, a prospective purchaser of a Certificate, any Trust Loan Seller if it has repurchased a portion of the Trust Loan in accordance with this Agreement and the Trust Loan Purchase Agreement and that either (a) such Person is a not a Borrower Related Party, a Manager, or an agent or Affiliate of any of the foregoing, in which case such Person shall have access to all the reports and information made available to Privileged Persons hereunder, or (b) such Person is a Borrower Related Party, a Manager, or an agent or Affiliate of the foregoing, in which case such Person shall only be permitted to receive access to the Distribution Date Statements prepared by the Certificate Administrator. The Investor Certification shall be substantially in the form of Exhibit K-1 or Exhibit K-2 hereto, as applicable, or may be in the form of an electronic certification contained on the Certificate Administrator’s Website containing the same information as Exhibit K-1 or Exhibit K-2, as applicable. Investor Certifications may be submitted electronically via the Certificate Administrator’s Website. The Certificate Administrator may require that Investor Certifications be resubmitted from time to time in accordance with its policies and procedures.

 

Upon receipt of notice from the Special Servicer that the Mezzanine Lender has accelerated any Mezzanine Loan or commenced foreclosure proceedings against the equity interests in the Borrower pledged pursuant to the related Mezzanine Loan documents, the Certificate Administrator will require any Certificateholder, Beneficial Owner of a Certificate or prospective purchaser of a Certificate that is a Restricted Holder to resubmit an Investor Certification pursuant to clause (b) of the definition of “Investor Certification”.

 

“Investor Q&A Forum”:  As defined in Section 4.5(a).

 

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“Investor Registry”:  As defined in Section 4.5(b).

 

“IRS”:  The Internal Revenue Service.

 

“KBRA”:  Xxxxx Bond Rating Agency, Inc., and its successors-in-interest.

 

“KeyBank”:  KeyBank National Association, a national banking association, and its successors in interest.

 

“Leases”:  With respect to the Property, a “Lease” as defined in the Mortgage Loan Agreement.

 

“Lenders”:  As defined in the Mortgage Loan Agreement.

 

“Liquidated Property”:  The Property, if it has been liquidated and the Special Servicer has determined that all amounts which it expects to recover from or on account of such Property have been recovered. 

 

“Liquidation Expenses”:  Reasonable and customary expenses (other than expenses covered by any insurance policy) incurred by the Servicer, the Special Servicer, the Certificate Administrator or the Trustee in connection with the liquidation of the Mortgage Loan or the Property (including for the avoidance of doubt, reasonable and customary expenses incurred by the Servicer, the Special Servicer, the Certificate Administrator or the Trustee in connection with the sale of the Mortgage Loan), such expenses including, without limitation, legal fees and expenses, appraisal fees, brokerage fees and commissions, conveyance taxes and trustee and co-trustee fees, if any.  Liquidation Expenses shall not include any previously incurred expenses which have been previously reimbursed to the party incurring the same or which were netted against income from the Foreclosed Property and were considered in the calculation of the amount of Foreclosure Proceeds pursuant to the definition thereof.

 

“Liquidation Fee”:  A fee payable to the Special Servicer with respect to the Liquidated Property or the liquidation of the Specially Serviced Mortgage Loan, whether through judicial foreclosure, sale or otherwise, or in connection with the sale, discounted payoff or other liquidation of the Specially Serviced Mortgage Loan or the Liquidated Property, as to which the Special Servicer receives any Liquidation Proceeds, equal to the product of the Liquidation Fee Rate and the Net Liquidation Proceeds related to such Liquidated Property or Specially Serviced Mortgage Loan; provided that any such Liquidation Fee shall be reduced by any Net Modification Fees paid by the Borrower with respect to the Specially Serviced Mortgage Loan that were received and retained by the Special Servicer, but only to the extent those Net Modification Fees have not previously been deducted from a Work-out Fee or Liquidation Fee; provided however that such Liquidation Fee will be subject to an aggregate $1,000,000 cap; and provided, further, that the Special Servicer shall not be entitled to receive a Liquidation Fee in connection with (i) the repurchase of all or any allocable portion of the Trust Loan by the Trust Loan Sellers (or the applicable Trust Loan Seller) pursuant to the Trust Loan Purchase Agreement (so long as such repurchase occurs within the Initial Resolution Period or any Extended Resolution Period) or (ii) a sale of all or any portion of the Mortgage Loan by the Special Servicer to the Servicer or Special Servicer or any Affiliate of the foregoing in accordance with Section 3.16.

 

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“Liquidation Fee Rate”:  A rate equal to one quarter of one percent (0.250%).

 

“Liquidation Proceeds”:  Amounts (other than Insurance Proceeds and Condemnation Proceeds) received by the Special Servicer and/or the Certificate Administrator in connection with the liquidation of the Specially Serviced Mortgage Loan, the Trust Loan, any Companion Loan, any Note or any Liquidated Property, whether through judicial foreclosure, sale or otherwise, or in connection with the sale, discounted payoff or other liquidation of the Specially Serviced Mortgage Loan, the Trust Loan, any Companion Loan or any Note (other than amounts required to be paid to the Borrower pursuant to law or the terms of the Mortgage Loan Agreement) including the proceeds of any full, partial or discounted payoff of the Specially Serviced Mortgage Loan, the Trust Loan, any Companion Loan or any Note (exclusive of any portion of such payoff or proceeds that represents Default Interest).

 

“Loan Interest Accrual Period”:  With respect to any Payment Date and each Note, the period commencing on and including the ninth day of the calendar month immediately preceding the month in which such Payment Date occurs to and ending on and including the 8th day of the calendar month of such Payment Date.

 

“Lockbox Account”: As defined in the Mortgage Loan Agreement.

 

“London Business Day”:  Any day other than a Saturday, Sunday or any other day on which commercial banks in London, England are not open for business.

 

“Lower-Tier Distribution Account”:  A subaccount of the Distribution Account, which shall be an asset of the Trust Fund and the Lower-Tier REMIC.

 

“Lower-Tier Distribution Amount”:  As defined in Section 4.1(b).

 

“Lower-Tier Principal Amount”:  With respect to any Class of Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution Date, an amount equal to the Original Lower-Tier Principal Amount of such Class as specified in the Introductory Statement to this Agreement, and (ii) as of any date of determination after the first Distribution Date an amount equal to the Certificate Balance of the Class of Related Certificates on the preceding Distribution Date (after giving effect to distribution of principal and allocation of Realized Losses pursuant to Sections 4.1(b) and 4.3).

 

“Lower-Tier REMIC”:  One of two separate REMICs comprising the Trust Fund, the assets of which consist of all of the assets of the Trust Fund other than the assets of the Upper-Tier REMIC, any Threshold Event Collateral and the Rating Agency Reserve Account.

 

“MAI Standards”:  Standards of Professional Appraisal Practice established for Members of the Appraisal Institute.

 

“Major Decision”:  Any of the following:

 

(i)          any proposed or actual foreclosure upon or comparable conversion (which may include acquisitions of a Foreclosed Property) of the ownership of the Property;

 

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(ii)         any modification, consent to a modification or waiver of any monetary term (other than late fees and Default Interest) or material non-monetary term (including, without limitation, the timing of payments and acceptance of discounted payoffs) of the Mortgage Loan or any extension of the Maturity Date of the Mortgage Loan, other than as permitted pursuant to the terms of the Mortgage Loan;

 

(iii)         any sale of the defaulted Mortgage Loan or the Foreclosed Property for less than the applicable Mortgage Loan Purchase Price;

 

(iv)       any determination to bring the Property or the Foreclosed Property into compliance with applicable environmental laws or to otherwise address hazardous material located at the Foreclosed Property;

 

(v)         any release of material Collateral (excluding letters of credit) or any acceptance of substitute or additional collateral for the Mortgage Loan or any consent to either of the foregoing, other than if required pursuant to the specific terms of the related Mortgage Loan and for which there is no material lender discretion;

 

(vi)        any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to the Mortgage Loan or any consent to such a waiver or consent to a transfer of the Property or interests in the Borrower other than for which there is no material lender discretion;

 

(vii)        any incurrence of additional debt (including any PACE Debt) by the Borrower or any additional mezzanine financing (or issuance of preferred equity that is substantially equivalent to a mezzanine loan) by any beneficial owner of the Borrower other than pursuant to the specific terms of the Mortgage Loan and for which there is no material lender discretion;

 

(viii)      any changes to a Manager or Franchisor with respect to the Mortgage Loan for which the lender is required to consent or approve under the Mortgage Loan Documents;

 

(ix)         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 Mortgage Loan and for which there is no material lender discretion;

 

(x)         any acceptance of an assumption agreement or any other agreement releasing the Borrower, the Guarantor or other obligor from liability under the Mortgage Loan or the Mortgage Loan Documents other than pursuant to the specific terms of the Mortgage Loan and for which there is no material lender discretion;

 

(xi)          any determination of an Acceptable Insurance Default;

 

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(xii)        any material modification, waiver or amendment of the Co-Lender Agreement, or any action to enforce rights (or decision not to enforce rights) with respect to such agreement, other than splitting the related Notes in accordance with the Co-Lender Agreement;

 

(xiii)       (i) any material modification, waiver or amendment of the Intercreditor Agreement, participation agreement or similar agreement with any mezzanine lender or subordinate debt holder (or holder of preferred equity that is substantially equivalent to a mezzanine loan) related to the Mortgage Loan, or any material modification, waiver or amendment of such agreements and/or (ii) the exercise of rights and powers granted under a mezzanine intercreditor agreement, participation agreement or similar agreement to the Lenders to the extent such rights or powers affect the priority of payment, consent rights or security interest with respect to the Mortgage Loan, to the extent the Controlling Class Certificateholder, the Directing Holder or any affiliate of the foregoing does not own any interest (whether legally, beneficially or otherwise) in such Mezzanine Loan; or

 

(xiv)       any approval of any “Material Lease”, as such term is defined in the Mortgage Loan Agreement.

 

“Major Decision Reporting Package”: As defined in Section 9.3(a).

 

“Majority Controlling Class Certificateholders”:  With respect to the Controlling Class, the Holder(s) of Certificates representing more than fifty percent (50%) of such Controlling Class, by Certificate Balance, as determined by the Certificate Registrar.

 

“Management Agreement”:  As defined in the Mortgage Loan Agreement.

 

“Manager”:  As defined in the Mortgage Loan Agreement.

 

“Material Breach”:  As defined in the Trust Loan Purchase Agreement.

 

“Material Document Defect”:  As defined in the Trust Loan Purchase Agreement.

 

“Maturity Date”:  December 9, 2024 or such other date on which the outstanding principal balance of the Mortgage Loan becomes due and payable, whether by declaration of acceleration, or otherwise.

 

“Mezzanine Borrower”:  Maximus PM Mezzanine A LLC, and its respective successors and assigns.

 

“Mezzanine Intercreditor Agreement”:  That certain intercreditor agreement by and between Barclays Capital Real Estate Inc. and Citi Real Estate Funding Inc., as senior lender, and APMSF Investor LLC, as mezzanine lender, dated as of November 26, 2019.

 

“Mezzanine Lender”:  APMSF Investor LLC, together with its successors and assigns.

 

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“Mezzanine Loan”:  As defined in the Mortgage Loan Agreement.

 

“Modification Fees”:  With respect to the Mortgage Loan, any and all fees with respect to a modification, extension, waiver or amendment that modifies, extends, amends or waives any term of the Mortgage Loan Documents (as evidenced by a signed writing) agreed to by the Servicer or the Special Servicer (other than all Assumption Fees, Assumption Application Fees, defeasance fees, consent fees, loan service transaction fees, Special Servicing Fees, Liquidation Fees or Work-out Fees). 

 

“Monthly Payment”:  With respect to the Trust Loan or the Mortgage Loan and any Distribution Date, the scheduled payment of interest on the Trust Loan or the Mortgage Loan, respectively, in each case which is due and payable on the immediately preceding Payment Date.

 

“Monthly Payment Advance”:  Any advance made with respect to the Trust Loan or the C Note by the Servicer or the Trustee pursuant to Section 3.23(a) or, if not made by the Servicer, made by the Trustee pursuant to Section 7.6, as applicable.  Each reference to the reimbursement or payment of a Monthly Payment Advance shall be deemed to include, whether or not specifically referred to, payment or reimbursement of interest thereon at the Advance Rate through the date preceding the date of payment or reimbursement.

 

“Moody’s”:  Xxxxx’x Investors Service, Inc., and its successors-in-interest.

 

“Morningstar”:  Morningstar Credit Ratings, LLC, and its successors-in-interest.

 

“Mortgage”:  As defined in the Mortgage Loan Agreement.

 

“Mortgage File”:  As defined in Section 2.1(b) and any additional documents required to be added to the Mortgage File pursuant to this Agreement.

 

“Mortgage Loan”:  As defined in the Introductory Statement to this Agreement.

 

“Mortgage Loan Agreement”:  As defined in the Introductory Statement.

 

“Mortgage Loan Documents”:  All documents executed or delivered by the Borrower (or its Affiliates) evidencing or securing the Mortgage Loan and any amendment thereof or thereafter or subsequently added to the Mortgage File, including without limitation the Mortgage Loan Agreement. For the avoidance of doubt, the Mortgage Loan Documents shall not include the Securitization Indemnification Agreement, and the rights of the Trust Loan Sellers and other parties to the Securitization Indemnification Agreement thereunder will not be part of the Trust Fund.

 

“Mortgage Loan Event of Default”:  An “Event of Default” as defined in the Mortgage Loan Agreement.

 

“Mortgage Loan Purchase Price”: With respect to the Mortgage Loan or Foreclosed Property, an amount (without duplication) equal to the sum of (i) the unpaid principal balance of the Mortgage Loan or related Notes, (ii) accrued and unpaid interest on each Note or

 

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Component, as applicable, at the related Note Rate or Component Rate through and including the last day of the related Mortgage Interest Accrual Period in which the repurchase is to occur, (iii) unreimbursed Property Protection Advances and Administrative Advances and fees and amounts owed to the Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor and the Trustee together with interest on Advances, in each case, to the extent attributable to the related Notes, (iv) an amount equal to the sum of (A) all interest on outstanding Monthly Payment Advances and (B) all interest on and all unreimbursed Companion Loan Advances attributable to the related Notes and (v) any unpaid Trust Fund Expenses and any amounts owed to the parties to this Agreement or any Other Pooling and Servicing Agreement with respect to the related Companion Loan attributable to the related Notes.

 

“Net Component Rate”: With respect to any Components and any Distribution Date, the annualized rate at which interest would have to accrue in respect of such Component on the basis of a 360-day year consisting of twelve 30-day months in order to produce the aggregate amount of interest (net of interest at the Servicing Fee Rate applicable to the Trust Loan, the Operating Advisor Fee Rate, the Certificate Administrator Fee Rate (including the portion that is the Trustee Fee) and the CREFC® Intellectual Property Royalty License Fee Rate and exclusive of any rate at which Default Interest accrues on such Component) actually accrued on such Component during the related Loan Interest Accrual Period; provided, however, that for purposes of calculating the Pass-Through Rates, each Net Component Rate will be determined without regard to any modification, waiver or amendment of the terms of the Trust Loan, whether agreed to by the Servicer, the Special Servicer or resulting from a bankruptcy, insolvency or similar proceeding involving the Borrower, or otherwise; provided, further, however, that if the Mortgage Loan accrues interest on an actual/360 basis, (i) the Net Component Rate for the Loan Interest Accrual Period preceding the Monthly Payment Dates in (a) January and February in each year that is not a leap year or (b) in February only in each year that is a leap year (in the case of either (a) or (b), unless the related Distribution Date is the final Distribution Date), will be the annualized rate at which interest would have to accrue in respect of such Component on the basis of a 360-day year consisting of twelve 30-day months in order to produce the aggregate amount of interest (net of interest at the Servicing Fee Rate applicable to the Trust Loan, the Operating Advisor Fee Rate, the Certificate Administrator Fee Rate (including the portion that is the Trustee Fee) and the CREFC® Intellectual Property Royalty License Fee Rate and exclusive of any rate at which Default Interest accrues on such Component) actually accrued on such Component during the related Loan Interest Accrual Period, minus the applicable Withheld Amounts and (ii) the Net Component Rate for the Loan Interest Accrual Period preceding the Monthly Payment Date in March (or February, if the related Distribution Date is the final Distribution Date), will be the annualized rate at which interest would have to accrue in respect of such Component on the basis of a 360-day year consisting of twelve 30-day months in order to produce the aggregate amount of interest (net of interest at the Servicing Fee Rate applicable to the Trust Loan, the Operating Advisor Fee Rate, the Certificate Administrator Fee Rate (including the portion that is the Trustee Fee) and the CREFC® Intellectual Property Royalty License Fee Rate and exclusive of any rate at which Default Interest accrues on such Component) actually accrued on such Component during the related Loan Interest Accrual Period plus the applicable Withheld Amounts.  For purposes of determining the “Net Component Rate” with respect to the Portion D-2 and the Class E, Class F and Class G Certificates, the related Component is Component B-A.  For purposes of

 

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determining the “Net Component Rate” with respect to the Class J and Class HRR Certificates, the related Component is Component B-HRR.

 

“Net Foreclosure Proceeds”:  With respect to the Foreclosed Property, the Foreclosure Proceeds with respect to such Foreclosed Property net of any insurance premiums, taxes, assessments, ground rents and other costs permitted to be paid therefrom pursuant to Section 3.14(c).

 

“Net Liquidation Proceeds”:  The excess of Liquidation Proceeds received with respect to the Property or the Mortgage Loan over the amount of Liquidation Expenses incurred with respect thereto.

 

“Net Modification Fees”: With respect to the Mortgage Loan, the sum of (A) the remainder, if any, of (i) any and all Modification Fees with respect to a modification, waiver, extension or amendment of any of the terms of the Mortgage Loan, minus (ii) all unpaid or unreimbursed additional expenses (including, without limitation, reimbursement of Advances and interest on such Advances at the Advance Rate to the extent not otherwise paid or reimbursed by the Borrower but excluding Special Servicing Fees, Work-out Fees and Liquidation Fees) either outstanding or previously incurred on behalf of the Trust or the Other Securitization Trust with respect to the Mortgage Loan and reimbursed from such Modification Fees and (B) expenses previously paid or reimbursed from Modification Fees as described in the preceding clause (A), which expenses have been subsequently recovered from the Borrower or otherwise.

 

“Net Proceeds”:  As defined in the Mortgage Loan Agreement.

 

“Net Trust Note Rate”:  With respect to any Trust A Note and any Distribution Date, the Trust Note Rate (net of interest at the Servicing Fee Rate applicable to the Trust Loan, the Operating Advisor Fee Rate, the Certificate Administrator Fee Rate (including the portion that is the Trustee Fee) and the CREFC® Intellectual Property Royalty License Fee Rate and exclusive of any rate at which Default Interest accrues on such Trust Note) actually accrued on such Trust Note during the related Loan Interest Accrual Period; provided, however, that for purposes of calculating Pass-Through Rates, each Net Trust Note Rate shall be determined without regard to any modification, waiver or amendment of the terms of the Trust Loan, whether agreed to by the Servicer, the Special Servicer or resulting from a bankruptcy, insolvency or similar proceeding involving the Borrower, or otherwise; provided, further, however, that, if the Mortgage Loan accrues interest on an actual/360 basis, (i) the Net Trust Note Rate for the Loan Interest Accrual Period preceding the Payment Dates in (a) January and February in each year that is not a leap year or (b) in February only in each year that is a leap year (in the case of either (a) or (b), unless the related Distribution Date is the final Distribution Date), shall be the annualized rate at which interest would have to accrue in respect of such Trust A Note on the basis of a 360-day year consisting of twelve 30-day months in order to produce the aggregate amount of interest (net of interest at the Servicing Fee Rate applicable to the Trust Loan, the Operating Advisor Fee Rate, the Certificate Administrator Fee Rate (including the portion that is the Trustee Fee) and the CREFC® Intellectual Property Royalty License Fee Rate and exclusive of any rate at which Default Interest accrues on such Trust A Note) actually accrued on such Trust A Note during the related Loan Interest Accrual Period, minus the

 

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applicable Withheld Amounts and (ii) the Net Trust Note Rate for the Loan Interest Accrual Period preceding the Payment Date in March (or February, if the related Distribution Date is the final Distribution Date), shall be the annualized rate at which interest would have to accrue in respect of such Trust A Note on the basis of a 360-day year consisting of twelve 30-day months in order to produce the aggregate amount of interest (net of interest at the Servicing Fee Rate applicable to the Trust Loan, the Operating Advisor Fee Rate, the Certificate Administrator Fee Rate (including the portion that is the Trustee Fee) and the CREFC® Intellectual Property Royalty License Fee Rate and exclusive of any rate at which Default Interest accrues on such Trust A Note) actually accrued on such Trust A Note during the related Loan Interest Accrual Period, plus the applicable Withheld Amounts.

 

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

 

“Non-Book Entry Certificates”:  As defined in Section 5.2(c).

 

“Non-U.S. Beneficial Ownership Certification”:  As defined in Section 5.3(f).

 

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

 

“Nondisqualification Opinion”:  An Opinion of Counsel, prepared at the Trust Fund’s expense and payable from the Collection Account, that a contemplated action will not cause (i) either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) a “prohibited transaction” or “prohibited contributions” tax to be imposed on either the Lower-Tier REMIC or the Upper-Tier REMIC at any time that any Certificates are outstanding.

 

“Nonrecoverable Advance”:  Any portion of an Advance previously made and not previously reimbursed, or proposed to be made, including interest thereon, which, in accordance with Accepted Servicing Practices (in the case of the Servicer) or good faith and reasonable business judgment (in the case of the Trustee) would not be ultimately recoverable from subsequent payments or collections (including Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds) in respect of the Mortgage Loan or the Property (in the case of Property Protection Advances or Administrative Advances) or the Trust Loan or C Note (in the case of Monthly Payment Advances) or from funds on deposit in the Collection Account pursuant to Section 3.4(c).  The Trustee may rely conclusively upon a determination of non-recoverability made by the Servicer.  The Servicer or the Special Servicer may consider (among other things) the items listed in Section 3.23(h) when making a determination regarding a Nonrecoverable Advance.

 

“Note C Securitization”: The Other Securitization relating to Note C-1, if any.

 

“Note C Operating Advisor”: The operating advisor appointed in connection with the Note C Securitization.

 

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“Note C Operating Advisor Consultation Event”:  The event that occurs when the Certificate Balance of the class of certificates evidencing the “eligible horizontal residual interest” (taking into account the application of any Appraisal Reduction Amounts to notionally reduce the certificate balance of such class) is 25% or less of the initial certificate balance of such class.

 

“Note Rate”: With respect to each Note, the per annum rate at which interest accrues on such Note as set forth in the Mortgage Loan Agreement without giving effect to the Default Rate.

 

“Notes”: As defined in the Introductory Statement to this Agreement.

 

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

 

“NRSRO Certification”: A certification (a) substantially in the form of Exhibit M executed by an NRSRO (including any Rating Agency) or (b) provided electronically and executed by such NRSRO by means of a “click-through” confirmation on the 17g-5 Information Provider’s Website, in either case in favor of the 17g-5 Information Provider that states that (a) such NRSRO is a Rating Agency, or (b) that such NRSRO has provided the Depositor with the appropriate certifications under paragraph (e) of Rule 17g-5, such NRSRO has access to the Depositor’s 17g-5 Internet website and any confidentiality provisions relating to information on the Depositor’s 17g-5 Internet website apply equally to information on the Certificate Administrator’s Website and the 17g-5 Information Provider’s Website.

 

“Offering Circular”:  The Offering Circular, dated December 5, 2019, for the Certificates.

 

“Officer’s Certificate”:  A certificate signed by (i) the Chairman of the Board, the Vice Chairman of the Board, the President or a Vice President (however denominated), the Treasurer, the Secretary, one of the Assistant Treasurers or Assistant Secretaries, any Servicing Officer, Responsible Officer or other officer of the Servicer, the Special Servicer, the Depositor, a Trust Loan Seller or any other entity referred to herein, as the case may be, customarily performing functions similar to those performed by any of the above designated officers 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 (ii) with respect to the Certificate Administrator and the Trustee, a Responsible Officer.

 

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

 

“Operating Advisor Annual Report”: As defined in Section 3.30(d).

 

“Operating Advisor Consultation Event”: The event that occurs when either (i) the Certificate Balance of the Class HRR Certificates (as notionally reduced by any Appraisal Reduction Amounts allocable to such Class in accordance with Section 3.7(a)) is equal to or less

 

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than 25% of the initial Certificate Balance of such Class or (ii) a Control Termination Event has occurred and is continuing. 

 

“Operating Advisor Consulting Fee”: A fee for each Asset Status Report and Major Decision on which the Operating Advisor has consultation obligations and performed its duties with respect to such Asset Status Report or Major Decision equal to $10,000 (or such lesser amount as the Borrowers pays with respect to such Mortgage Loan), payable pursuant to Section 3.30(i) of this Agreement; provided, however, that the Operating Advisor may in its sole discretion reduce the Operating Advisor Consulting Fee with respect to any Asset Status Report or Major Decision; provided, further, that the Servicer or Special Servicer, as applicable, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the Borrowers if they determine that such full or partial waiver is in accordance with Accepted Servicing Practices, but may in no event take any enforcement action with respect to the collection of such Operating Advisor Consulting Fee other than requests for collection (provided that the Servicer or the Special Servicer, as applicable, shall consult, on a non-binding basis, with the Operating Advisor prior to any such waiver or reduction).

 

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

 

“Operating Advisor Fee”: With respect to the Mortgage Loan, the fee payable to the Operating Advisor pursuant to Section 3.30(i).

 

“Operating Advisor Fee Rate”:  With respect to the Trust Loan, a per annum rate of 0.00125%.

 

“Operating Advisor Standard”: The requirement that the Operating Advisor must act solely on behalf of the Trust and in the best interest of, and for the benefit of, the Certificateholders and the Senior Pari Passu Companion Loan Holders (as a collective whole as if such Certificateholders and the Senior Pari Passu Companion Loan Holders constituted one lender (as determined by the Operating Advisor in the exercise of its good faith and reasonable judgment)), but without regard to any conflict of interest arising from any relationship that the Operating Advisor or any of its Affiliates may have with the Borrower, the Manager, the Borrower Sponsor, the Guarantor, the Trust Loan Sellers, the Depositor, the Servicer, the Special Servicer, the Directing Holder, any Certificateholder or any of their respective Affiliates.

 

“Operating Advisor Termination Event”:  Any of the following events, whether any such event is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body:

 

(a)          any failure by the Operating Advisor to observe or perform in any material respect any of its covenants or agreements or the material breach of any of its representations or warranties under this Agreement, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure,

 

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requiring the same to be remedied, is given to the Operating Advisor by any party to this Agreement or to the Operating Advisor, the Certificate Administrator and the Trustee by the holders of Certificates having greater than 25% of the aggregate Voting Rights; provided that with respect to any such failure which is not curable within such thirty (30) day period, the Operating Advisor will have an additional cure period of thirty (30) days to effect such cure so long as it has commenced to cure such failure within the initial thirty (30) day period and has provided the Trustee and the Certificate Administrator with an officer’s certificate certifying that it has diligently pursued, and is continuing to pursue, such cure;

 

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

 

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

 

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

 

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

 

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

 

“Opinion of Counsel”:  A written opinion of counsel, who may, without limitation, be counsel for the Depositor, the Operating Advisor, the Servicer or the Special Servicer, reasonably acceptable to the Trustee and the Certificate Administrator.

 

“Original Certificate Balance”:  As defined in the Introductory Statement.

 

“Original Lower-Tier Principal Amount”:  With respect to any Class of Uncertificated Lower-Tier Interests, the initial Lower-Tier Principal Amount thereof as of the Closing Date, in each case as specified in the Introductory Statement to this Agreement.

 

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“Origination Date”:  November 26, 2019.

 

“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, operating advisor 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 13.7, 13.8, 13.9 and 13.16 only, the trustee, certificate administrator, master servicer, special servicer, operating advisor or depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or dissemination of periodic distribution date statements or similar reports, as identified in writing to the parties to this Agreement.

 

“Other Pooling and Servicing Agreement”:  The applicable pooling and servicing agreement or other applicable comparable agreement governing the creation of any Other Securitization Trust and the issuance of securities with respect to any Companion Loan (or any portion thereof or interest therein).

 

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

 

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

 

“PACE Debt”: Any amounts owed in respect of energy retrofit lending programs, commonly known as “PACE Loans”.

 

“Pass-Through Rate”:  For the following Classes of Certificates, the related Pass-Through Rate set forth below, and for each Uncertificated Lower-Tier Interest, the Net Trust Note Rate of the Trust Notes or Net Component Rate of the related Component, as applicable, at which, in each case, interest accrues on the Certificate Balance or Lower-Tier Principal Amount, as applicable, of such Class as set forth in the Introductory Statement to this Agreement.

 

Class of Certificates

 

Pass-Through Rate

Class A Certificates

 

Class A Pass-Through Rate

Class B Certificates

 

Class B Pass-Through Rate

Class C Certificates

 

Class C Pass-Through Rate

Class D Certificates

 

Class D Pass-Through Rate

Class E Certificates

 

Class E Pass-Through Rate

Class F Certificates

 

Class F Pass-Through Rate

 

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Class of Certificates

 

Pass-Through Rate

Class G Certificates

 

Class G Pass-Through Rate

Class J Certificates

 

Class J Pass-Through Rate

Class HRR Certificates

 

Class HRR Pass-Through Rate

 

“Payment Date”:  The ninth day of each month during the term of the Mortgage Loan, subject to any applicable grace period pursuant to the Mortgage Loan Agreement.

 

“Percentage Interest”:  As to any Class of Regular Certificate, the initial Certificate Balance of such Certificate divided by the initial Certificate Balance of all of the Certificates of the related Class.  With respect to the Class R Certificates, the percentage specified on the Certificate held by the Holder of such Certificate.

 

“Permitted Encumbrances”:  As defined in the Mortgage Loan Agreement.

 

“Permitted Investments”:  Any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by the Servicer, the Certificate Administrator or the Trustee or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the first Payment Date following the date of acquiring such investment and meeting one of the appropriate standards set forth below:

 

(i)            direct obligations of, and obligations fully guaranteed as to timely payment of principal and interest by, the United States of America, Xxxxxx Xxx, Xxxxxxx 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, Xxxxxxx Mac debt obligations, and Xxxxxx Mae debt obligations;

 

(ii)           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, the short-term debt obligations of which are rated in the highest short term debt rating category by Fitch (and the equivalent rating by KBRA (if then rated by KBRA)) (or, in the case of any such

 

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Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates);

 

(iii)          deposits that are fully insured by the Federal Deposit Insurance Corp. (“FDIC”);

 

(iv)          commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof and (A) if it has a term of one month or less, the short-term obligations of which are rated at least “F1” by Fitch and in the highest short-term debt rating category of KBRA (if then rated by KBRA); and (B) if it has a term of more than one month, (1) the short-term debt obligations of which are rated at least “F1+” by Fitch (or “F1” by Fitch, if the long-term debt obligations of which are rated at least “AA-” by Fitch) and (2) the short-term debt obligations of which are rated in the highest short-term rating category by KBRA (if then rated by KBRA) (or, in the case of any such Rating Agency as set forth in clauses (A) through (B) above, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates);

 

(v)          any money market fund that (a) has substantially all of its assets invested continuously in the types of investments referred to in clause (i) above, (b) has net assets of not less than $5,000,000,000, (c) maintains a constant net asset value, (d) has the highest rating obtainable from and (e) has the highest rating obtainable from Fitch and KBRA (if then rated by KBRA);

 

(vi)         the Xxxxx Fargo Money Market Funds, so long as it maintains a constant net asset value and is rated by Fitch and KBRA (if then rated by KBRA) in their highest respective money market fund ratings category (or, if not rated by any such Rating Agency, as otherwise acceptable to such Rating Agency as confirmed in a Rating Agency Confirmation);

 

(vii)         any other demand, money market or time deposit, obligation, security or investment, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i)-(vi) above with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency for which the minimum ratings set forth in the applicable clause is not satisfied with respect to such demand, money market or time deposit, obligation, security or investment; and

 

(viii)        such other investments as to which each Rating Agency shall have delivered a Rating Agency Confirmation;

 

provided, however, that each Permitted Investment qualifies as a “cash flow investment” pursuant to Section 860G(a)(6) of the Code, and that (a) it shall have a predetermined fixed dollar of principal due at maturity that cannot vary or change and (b) any such investment that provides for a variable rate of interest must have an interest rate that is tied to a single interest rate index plus a fixed spread, if any, and move proportionately with such index; and provided, further, however, that no such instrument shall be a Permitted Investment (a) if such instrument evidences principal and interest payments derived from obligations underlying such instrument

 

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and the interest payments with respect to such instrument provide a yield to maturity at the time of acquisition of greater than 120% of the yield to maturity at par of such underlying obligations, (b) if such instrument may be redeemed at a price below the purchase price or (c) if such investment is purchased at a premium over par; and provided, further, however, that no amount beneficially owned by the Upper-Tier REMIC or the Lower-Tier REMIC (even if not yet deposited in the Trust) may be invested in investments (other than money market funds) treated as equity interests for federal income tax purposes, unless the Servicer receives an Opinion of Counsel, at its own expense, to the effect that such investment will not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC.  Permitted Investments may not be interest-only securities.  All investments shall mature or be redeemable upon the option of the holder thereof on or prior to the earlier of (x) three months from the date of their purchase and (y) the Business Day preceding the day before the date such amounts are required to be applied hereunder.

 

“Permitted Special Servicer/Affiliate Fees”:  Any commercially reasonable treasury management fees, appraisal fees, banking fees, insurance commissions or fees, property condition report fees and appraisal fees received or retained by the Special Servicer or any of its Affiliates in connection with any services performed by such party with respect to the Trust Loan or Foreclosed Property in accordance with this Agreement.

 

“Permitted Transferee”:  Any Person or agent of such Person other than (a) a Disqualified Organization, (b) any other Person so designated by the Certificate Registrar who fails to provide an Opinion of Counsel (provided at the expense of such Person or the Person requesting the transfer) to the effect that the transfer of an ownership interest in any Class R Certificate to such Person would not cause the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding, (c) a Disqualified Non-U.S. Person, (d) any partnership if any of its interests are (or under the partnership agreement are permitted to be) owned, directly or indirectly (other than through a U.S. corporation), by a Disqualified Non-U.S. Person, (e) a U.S. Person with respect to whom income from the Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the transferee or any other U.S. Person or (f) a Plan or a Person acting on behalf of or using the assets of a Plan to acquire any Class R Certificate.

 

“Person”:  Any individual, corporation, limited liability company, partnership, joint venture, estate, trust, unincorporated association, bank, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

 

“Plan”:  As defined in Section 5.3(n).

 

“Portion Balance”:  As defined in the Preliminary Statement.

 

“Portion D-1”:  As defined in the Preliminary Statement.

 

“Portion D-2”:  As defined in the Preliminary Statement.

 

“Prime Rate”:  The “prime rate” published in the “Money Rates” section of The Wall Street Journal.  If The Wall Street Journal ceases to publish the “prime rate”, then the

 

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Servicer, on the lender’s behalf, or the Certificate Administrator, as applicable, shall select an equivalent publication that publishes such “prime rate”, and if such “prime rate” is no longer generally published or is limited, regulated or administered by a governmental or quasi-governmental body, then the Servicer, on the lender’s behalf, or the Certificate Administrator, as applicable, shall reasonably select a comparable interest rate index.

 

“Principal Distribution Amount”:  For each Distribution Date and each Class of Sequential Pay Certificates, the sum of (i)  the Regular Principal Distribution Amount for such Distribution Date and (ii) the aggregate unpaid Principal Shortfalls in respect of prior Distribution Dates.

 

“Principal Shortfall”:  For each Distribution Date, the amount by which the Regular Principal Distribution Amount for such Distribution Date exceeds the amount actually distributed in respect of principal to the Sequential Pay Certificates on such Distribution Date. 

 

“Privileged Information”:  Any (i) correspondence between the Directing Holder, on the one hand, and the Trustee, the Servicer or the Special Servicer, on the other hand, related to the Specially Serviced Mortgage Loan or the exercise of the Directing Holder’s consent or consultation rights under this Agreement, (ii) strategically sensitive information in the Special Servicer’s possession that the Special Servicer has reasonably determined could compromise the Trust Fund’s position in any ongoing or future negotiations with the Borrower or other interested party and that is labeled or otherwise identified as Privileged Information by the Special Servicer or (iii) information subject to attorney-client privilege; provided, however, that the Certificate Administrator shall not be under any obligation to review whether any inquiry or response contains such direct communication with the Directing Holder. The Servicer and the Operating Advisor shall be entitled to rely on any identification of materials as “attorney-client privileged” without liability for any such reliance hereunder.

 

“Privileged Information Exception”: With respect to any Privileged Information, at any time (a) such Privileged Information becomes generally available and known to the public other than as a result of a disclosure directly or indirectly by the party restricted from disclosing such Privileged Information (the “Restricted Party”), (b) it is reasonable and necessary for the Restricted Party to disclose such Privileged Information in working with legal counsel, auditors, arbitration parties, taxing authorities or other governmental agencies, (c) such Privileged Information was already known to such Restricted Party and not otherwise subject to a confidentiality obligation and/or (d) the Restricted Party is required by law, rule, regulation, order, judgment or decree to disclose such information.

 

“Privileged Person”: The Depositor and its designees, the Initial Purchasers, the Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Trust Loan Sellers, any Repurchasing Seller pursuant to Section 3.27(b), any other Person (including the Directing Holder, but only prior to the occurrence of a Consultation Termination Event), any Companion Loan Holder that delivers an Investor Certification, any holder of Note C Securitization securities, any other Person who provides the Certificate Administrator with an Investor Certification and any NRSRO that delivers an NRSRO Certification to the Certificate Administrator, which Investor Certification and NRSRO Certification may be submitted electronically via the Certificate Administrator’s Website.  For purposes of obtaining access to

 

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information in the possession of the Certificate Administrator and/or receiving any information or report from the Certificate Administrator’s Website (including accessing the Investor Q&A Forum), other than Distribution Date Statements only, the Borrower Related Parties, the Managers and the respective agents or Affiliates of the foregoing (in each case, as evidenced by an Investor Certification in the form of Exhibit K-2 hereto) shall be deemed to not be a “Privileged Person”.  Notwithstanding anything herein to the contrary, the provisions hereof shall not limit the Servicer’s ability to make accessible certain information regarding the Mortgage Loan at a website maintained by the Servicer.

 

“Property”:  As defined in the Mortgage Loan Agreement.

 

“Property Protection Advance”:  As defined in Section 3.23(b).

 

“QIB”:  A “qualified institutional buyer” within the meaning of Rule 144A.

 

“Qualified Replacement Special Servicer”: A replacement special servicer that (i) satisfies all of the eligibility requirements applicable to the Special Servicer contained in this Agreement, (ii) is not the Operating Advisor, the Note C Operating Advisor or an Affiliate of the Operating Advisor or the Note C Operating Advisor, (iii) is not obligated to pay the Operating Advisor or the Note C Operating Advisor (x) any fees or otherwise compensate the Operating Advisor or the Note C Operating Advisor under this Agreement or the Trust Agreement, or (y) for the appointment of the successor special servicer or the recommendation by the Operating Advisor or the Note C Operating Advisor for the replacement special servicer to become a Special Servicer, (iv) is not entitled to receive any compensation from the Operating Advisor or the Note C Operating Advisor other than compensation that is not material and is unrelated to the Operating Advisor’s or the Note C 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 or the Note C Operating Advisor for its appointment as successor special servicer, in each case, unless such fee is expressly approved by 100% of the Certificateholders, and (vi) currently has a special servicer rating of at least “CSS3” from Fitch.

 

“Qualified Bidder”:  As defined in Section 7.2(b).

 

“Qualified Mortgage”: As defined in Section 2.9(a).

 

“Qualified Transfer”:  As defined in the Mortgage Loan Agreement.

 

“RAC Decision”:  Any action described in clauses (v), (vi), (vii), (viii) or (x) of the definition of Major Decision.

 

“Rated Final Distribution Date”:  With respect to the Class A, Class B, Class C, Class D, Class E, Class F and Class G Certificates, the Distribution Date in December 2036.

 

“Rating Agency”:  KBRA and Fitch, as applicable.

 

“Rating Agency Confirmation”: With respect to any matter, confirmation in writing (which may be in electronic format) by a Rating Agency that a proposed action, failure to act or other event so specified in this Agreement or the Mortgage Loan Documents will not, in

 

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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 such Rating Agency) immediately prior to the occurrence of the action, failure to act or other event with respect to which Rating Agency Confirmation is sought as set forth in Section 3.28 hereof; provided that with respect to any matter affecting any Companion Loan, so long as such Companion Loan (or any portion thereof) is subject to a securitization transaction, any Rating Agency Confirmation shall also refer to the Companion Loan Rating Agency Confirmation from each related Companion Loan Rating Agency to the extent provided in Section 3.29.  At any time during which no Certificates are rated by a Rating Agency, no Rating Agency Confirmation will be required from that Rating Agency. A Rating Agency Confirmation may be obtained or deemed to be satisfied as set forth in Section 3.28 hereof; provided that a written waiver (which may be in electronic form) or other acknowledgment from a Rating Agency indicating its decision not to review or to decline to review the matter for which the Rating Agency Confirmation is sought shall be deemed to satisfy the requirement for the Rating Agency Confirmation from such Rating Agency with respect to such matter. 

 

“Rating Agency Fees”: Any fees due to each of Fitch and KBRA for ongoing ratings surveillance with respect to the Certificates.

 

“Rating Agency Inquiry”:  As defined in Section 4.5(d).

 

“Rating Agency Q&A Forum and Document Request Tool”:  As defined in Section 4.5(d).

 

“Rating Agency Reserve Account”: The segregated non-interest bearing trust account or sub-account created and maintained by the Certificate Administrator pursuant to Section 3.32 of this Agreement, which shall be entitled “Xxxxx Fargo Bank, National Association, as Certificate Administrator and as Trustee, for the benefit of the Holders of MRCD Trust 2019-PARK Commercial Mortgage Pass-Through Certificates, Rating Agency Reserve Account” and which must be an Eligible Account or a sub-account of an Eligible Account.

 

“Realized Loss”:  With respect to any Distribution Date, the amount, if any, by which (i) the aggregate of the Certificate Balances of the Sequential Pay Certificates after giving effect to distributions made on such Distribution Date exceeds (ii) the outstanding principal balance of the Trust Loan after giving effect to (x) any payments of principal received with respect to the Payment Date occurring immediately prior to such Distribution Date and (y) the aggregate reductions of the  principal balance of the Trust Loan that have been permanently made as a result of a bankruptcy proceeding, modification or otherwise.

 

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

 

“Regular Certificates”:  The Class A, Class B, Class C, Class D, Class E, Class F, Class G and Class J Certificates and the Class HRR Regular Interest.

 

“Regular Principal Distribution Amount”:  For each Distribution Date, the sum of (a) all amounts collected or advanced in respect of principal with respect to the Trust Loan

 

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during the related Collection Period, (b) the principal portion of the Repurchase Price and (c) all amounts received in respect of principal in respect of the Trust Loan from Net Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds or the sale of the Trust Loan to the Mezzanine Lender and all amounts otherwise received in respect of principal on the Trust Loan.

 

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

 

“Regulation S”:  Regulation S under the Act.

 

“Regulation S Global Certificate”:  As defined in Section 5.2(a).

 

“Related Certificates”, “Related Uncertificated Lower-Tier Interests”:  For the following Classes of Certificates and Classes of Uncertificated Lower-Tier Interests, as applicable, set forth below:

 

Related Uncertificated Lower-Tier Interests

 

Related Certificates

Class LA Uncertificated Interest

 

Class A

Class LB Uncertificated Interest

 

Class B

Class LC Uncertificated Interest

 

Class C

Class LD-1 Uncertificated Interest

 

Class D (Portion D-1)

Class LD-2 Uncertificated Interest

 

Class D (Portion D-2)

Class LE Uncertificated Interest

 

Class E

Class LF Uncertificated Interest

 

Class F

Class LG Uncertificated Interest

 

Class G

Class LJ Uncertificated Interest

 

Class J

Class LHRR Uncertificated Interest

 

Class HRR

 

“Relevant Action”:  As defined in Section 3.29(b).

 

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

 

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

 

“REMIC Provisions”:  Provisions of the Code relating to “real estate mortgage investment conduits,” including Sections 860A through 860G of the Code.

 

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“Remittance Date”:  With respect to each Distribution Date, the Business Day immediately preceding such Distribution Date.

 

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

 

“REO Management Fee”:  As to the Property when it is a Foreclosed Property, a fee payable out of the Foreclosed Property Account to the Successor Manager for managing such Property while it is owned by the Trust Fund, which shall be reasonable and customary in the market in which such Property is located.

 

“Reporting Servicer”:  The Servicer, the Special Servicer, the Certificate Administrator, the Trustee or a Servicing Function Participant engaged by any such party, as the case may be.

 

“Repurchase Communication”:  For purposes of Section 2.2(d) only, any communication, whether oral or written, which need not be in any specific form.

 

“Repurchase Price”:  An amount (without duplication) equal to (a) with respect to the Trust Loan, the sum of (i) the unpaid principal balance of the Trust Loan, (ii) accrued and unpaid interest on the Trust Loan at the weighted average of the Trust Note Rates (without giving effect to the Default Rate) to and including the last day of the related Loan Interest Accrual Period in which the repurchase is to occur (or, in the case of a repurchase of a portion of the Trust Loan, an amount equal to the aggregate accrued and unpaid interest at the weighted average of the Note Rates (exclusive of the Default Rate) on the portion(s) of the amount in clause (i) being reduced from the principal balance of the Trust Loan), (iii) unreimbursed Property Protection Advances and Administrative Advances together with interest on Advances allocable to the Trust Loan pursuant to the Co-Lender Agreement, (iv) an amount equal to all interest on outstanding Monthly Payment Advances, (v) any unpaid Trust Fund Expenses allocable to the Trust Loan pursuant to the Co-Lender Agreement and (vi) any other expenses reasonably incurred or expected to be incurred by the Servicer, the Special Servicer, the Certificate Administrator or the Trustee arising out of the enforcement of the repurchase obligation, and (b) with respect to any repurchase by a single Trust Loan Seller of any of such Trust Loan Seller’s individual Trust Notes, the sum of (i) the unpaid principal balance of such Trust Notes, (ii) accrued and unpaid interest on such Trust Notes at the related Note Rate (exclusive of the Default Rate) to and including the last day of the related Loan Interest Accrual Period in which the repurchase is to occur, (iii) unreimbursed Property Protection Advances and Administrative Advances (in each case, allocable to such Trust Notes pursuant to the Co-Lender Agreement) together with interest on Advances, (iv) an amount equal to all interest on outstanding Monthly Payment Advances (allocable to such Trust Notes pursuant to the Co-Lender Agreement), (v) any unpaid Trust Fund Expenses (allocable to such Trust Notes pursuant to the Co-Lender Agreement) and (vi) any other out-of-pocket expenses reasonably incurred or expected to be incurred by the Servicer, Special Servicer, Certificate Administrator, Operating Advisor or Trustee arising out of the enforcement of the repurchase obligation (allocable to such Trust Notes pursuant to the Co-Lender Agreement).  No Liquidation Fee shall be payable by the Trust Loan Sellers in connection with a repurchase of the Trust Loan (or a portion of the Trust Loan) due to a Material Breach or a Material Document Defect pursuant to the Trust Loan

 

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Purchase Agreement (so long as such repurchase occurs prior to the expiration of the Initial Resolution Period or Extended Resolution Period (if applicable)).

 

“Repurchase Request”:  With respect to the Trust Loan, any request or demand whether oral or written that the Trust Loan be repurchased or replaced, whether arising from a Material Breach or Material Document Defect or other breach of a representation or warranty.

 

“Repurchase Request Recipient”:  As defined in Section 2.2(d).

 

“Repurchase Request Withdrawal”:  As defined in Section 2.2(d).

 

“Repurchased Note”:  As defined in Section 3.27(a).

 

“Repurchasing Seller”:  As defined in Section 3.27.

 

“Requesting Holders”:  As defined in Section 3.7(f).

 

“Requesting Party”:  As defined in Section 3.28.

 

“Required Advance Amount”:  With respect to any Distribution Date, an amount equal to (a) the amount of the Monthly Payment Advance with respect to the Trust Loan and the C Note (taking into account any Trust Appraisal Reduction Amount and Appraisal Reduction Amount allocable to the C Note as of such Distribution Date) that would be required to be made on the related Remittance Date by the Servicer had the Borrower not made any portion of the Monthly Payment (or an Assumed Monthly Payment) for the related Payment Date (or an assumed Payment Date) less (b) the aggregate compensation payable on such Remittance Date to the Servicer in respect of the Servicing Fee, the Certificate Administrator in respect of the Certificate Administrator Fee (including the portion that constitutes the Trustee Fee), to the Operating Advisor in respect of the Operating Advisor Fee and to CREFC® in respect of the CREFC® Intellectual Property Royalty License Fee.

 

“Required Third Party Purchaser Retention Amount”:  $75,000,000 of the Certificate Balances of the Risk Retention Certificates.

 

“Reserve Account”:  Any reserve account required to be maintained by the lender (or the Servicer, on its behalf) pursuant to Article III of the Mortgage Loan Agreement.

 

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

 

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

 

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and in the case of any certification or other document required to be signed by a Responsible Officer, an authorized signatory whose name and specimen signature appears on a list furnished to the Servicer or the Special Servicer, as applicable, by the Trustee or the Certificate Administrator, as applicable, as such list may from time to time be amended.

 

“Restricted Holder”:  Any Certificateholder, Beneficial Owner of a Certificate or prospective purchaser of a Certificate (whether legally, beneficially or otherwise) or any other Person that is also a Mezzanine Lender (or any Affiliate or agent thereof) or an owner in any interest in a Mezzanine Loan (whether legally, beneficially or otherwise, including as a holder of a note evidencing a Mezzanine Loan, a holder of a participation interest in a Mezzanine Loan or a beneficial owner of any securities collateralized by a Mezzanine Loan) if either (A)(i) an event of default under a Mezzanine Loan has occurred giving rise to an automatic acceleration of such Mezzanine Loan or the right of the Mezzanine Lender thereunder to accelerate such Mezzanine Loan or (ii) foreclosure proceedings against the related collateral have been initiated (and in respect of which, the Special Servicer has received notice thereof) or (B) such Person is (i) the AIMCO Option Holder, (ii) AIMCO Properties, L.P. or (iii) any Control Affiliate (without regard to parenthetical exclusion set forth in the definition of “control” as set forth in the definition of “Control Affiliate”) of the AIMCO Option Holder or AIMCO Properties, L.P.

 

“Restricted Period”:  As defined in Section 5.2(a).

 

“Retained Fee Rate”:  With respect to the Trust Loan (and any successor foreclosed property with respect thereto), 0.00125% and with respect to the Companion Loans, 0%.

 

“Retaining Sponsor”: Barclays.

 

“Risk Retention Affiliate” or “Risk Retention Affiliated”: As “affiliate” or “affiliated” are defined in Section 244.2 of the Credit Risk Retention Rules.

 

“Risk Retention Agreement”: The Risk Retention Agreement, made and entered into as of December 5, 2019, by and among the Depositor, Barclays and the Third Party Purchaser.

 

“Risk Retention Certificates”: The Class HRR Certificates.

 

“Risk Retention Period”: The period from the Closing Date until the date that is the earliest of (A) the latest of (i) the date on which the aggregate principal balance of the Trust Loan has been reduced to 33% of the aggregate principal balance of the Trust Loan as of the Cut-off Date; (ii) the date on which the total outstanding Certificate Balance of the Certificates has been reduced to 33% of the total outstanding Certificate Balance of the Certificates as of the Closing Date; or (iii) two years after the Closing Date; or (B) the date on which all of the Credit Risk Retention Rules have (i) been officially repealed or abolished in their entirety or (ii) subject to the consent of the Retaining Sponsor (such consent may only be withheld to the extent the Retaining Sponsor (a) reasonably determines that the Credit Risk Retention Rules apply to this securitization transaction or the Risk Retention Certificates, (b) provides to the Third Party Purchaser the Retaining Sponsor’s basis for the withheld consent, and (c) gives the Third Party Purchaser a reasonable opportunity to address the Retaining Sponsor’s concerns) officially

 

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determined by the relevant regulatory agencies to be no longer applicable to the transaction or the Risk Retention Certificates.

 

“Rule 15Ga-1”:  Rule 15Ga-1 under the Exchange Act.

 

“Rule 15Ga-1 Notice”:  As defined in Section 2.2(d).

 

“Rule 17g-5”:  Rule 17g-5 under the Exchange Act.

 

“Rule 144A”:  As defined in Section 5.2(b).

 

“Rule 144A Global Certificate”:  As defined in Section 5.2(b).

 

“Rule 144A Information”:  As defined in Section 3.21(d).

 

“Rule 144A Information Recipients”:  As defined in Section 3.21(d).

 

“S&P”:  S&P Global Ratings, and its successors-in-interest.

 

“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).

 

“Xxxxxxxx-Xxxxx 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.

 

“Securitization Cooperation Provisions”:  The provisions set forth in Sections 9.1 and 9.2 of the Mortgage Loan Agreement (which sections provide for, among other things, indemnifications by the Borrower for certain information contained in the Offering Circular).

 

“Securitization Indemnification Agreement”: The indemnification agreement, dated as of December 5, 2019, by the Borrower in favor of the Depositor, the Initial Purchasers, the Trust Loan Sellers and the Originators.

 

“Sequential Pay Certificates”:  The Class A, Class B, Class C, Class D, Class E, Class F, Class G, Class J and Class HRR Certificates.

 

“Servicer”:  KeyBank National Association, or if any successor servicer is appointed as herein provided, such successor servicer.

 

“Servicer Customary Expense”: As defined in Section 3.17.

 

“Servicer Investment Personnel”:  As defined in Section 6.5(a).

 

“Servicer Servicing Personnel”:  As defined in Section 6.5(a).

 

“Servicer Termination Event”:  As defined in Section 7.1(a).

 

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“Service(s)” or “Servicing”:  In accordance with Regulation AB, the act of servicing and administering the Mortgage Loan or any other assets of the Trust by an entity (other than the Certificate Administrator or Trustee) that meets the definition of “servicer” set forth in Item 1101 of Regulation AB and is subject to 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 industry.

 

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

 

“Servicing Fee”:  With respect to the Trust Loan, each Companion Loan and any Foreclosed Property, a fee payable monthly out of amounts on deposit in the Collection Account pursuant to Section 3.17, (which includes the Excess Servicing Fee), that will accrue at the Servicing Fee Rate, with respect to any amount collected within a collection period and will consist of an amount computed on the basis of the same principal amount, on the same interest accrual basis, and for the same Loan Interest Accrual Period respecting which any related interest payment on the Trust Loan or such Companion Loan, as the case may be, is (or would have been) computed.  For the avoidance of doubt, the Servicing Fee with respect to the Trust Loan shall be deemed payable from the Lower-Tier REMIC.

 

“Servicing Fee Rate”:  With respect to the Trust Loan, 0.00250% per annum; and with respect to the Companion Loans, 0.00125% per annum.

 

“Servicing Function Participant”:  Any Additional Servicer, Sub-Servicer, Subcontractor or any other Person, other than the Trustee, the Certificate Administrator, the Operating Advisor, the Servicer and the Special Servicer, that is performing activities that address the Applicable Servicing Criteria as of any date of determination.

 

“Servicing Officer”:  Any officer of the Servicer or the Special Servicer involved in, or responsible for, the administration and servicing of the Mortgage Loan whose name and specimen signature appear on a list of servicing officers furnished to the Trustee and the Certificate Administrator on the Closing Date by the Servicer or the Special Servicer, as applicable, in the form of an Officer’s Certificate, as such list may from time to time be amended.

 

“Servicing Released Bid”:  As defined in Section 7.2(b).

 

“Servicing Retained Bid”:  As defined in Section 7.2(b).

 

“Significant Obligor NOI Quarterly Filing Deadline”: With respect to each calendar quarter (other than the fourth calendar quarter of any calendar year), the date that is fifteen (15) days after the Relevant Distribution Date occurring on or immediately following the date on which financial statements for such calendar quarter are required to be delivered to the related lender under the Mortgage Loan Documents. The parties to this Agreement acknowledge that that in the event the Property securing a Companion Loan is a “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) with respect to an Other Securitization Trust that

 

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includes such Companion Loan, the date on which quarterly financial statements are required to be delivered to the related lender under the Mortgage Loan Documents is, with respect to net operating income information, forty-five (45) days following the end of each fiscal quarter, subject to the terms of the Mortgage Loan Agreement.

 

“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 5.3(n).

 

“Special Notice”:  As defined in Section 5.6.

 

“Special Servicer”: KeyBank National Association, or if any successor special servicer is appointed as herein provided, such successor special servicer.

 

“Special Servicer Customary Expense”: As defined in Section 3.17(c).

 

“Special Servicer Investment Personnel”:  As defined in Section 6.5(b).

 

“Special Servicer Servicing Personnel”:  As defined in Section 6.5(b).

 

“Special Servicer Termination Event”:  As defined in Section 7.1(a).

 

“Special Servicing Fee”:  If the Mortgage Loan becomes a Specially Serviced Mortgage Loan, a fee payable monthly to the Special Servicer equal to an amount computed on the basis of the same principal amount and for the same period respecting which any related interest payment on the Specially Serviced Mortgage Loan is computed, at a rate of 0.25% per annum until the Special Servicing Loan Event with respect to the Specially Serviced Mortgage Loan no longer exists.  Such fee shall be in addition to, and not in lieu of, any other fee or other sum payable to the Special Servicer under this Agreement.  For the avoidance of doubt, the Special Servicing Fee shall be deemed payable from the Lower-Tier REMIC.

 

“Special Servicing Loan Event”:  With respect to the Mortgage Loan, (i) the Borrower has not made two consecutive Monthly Payments (and has not cured at least one such delinquency by the next Payment Date under the Mortgage Loan Documents) in respect of the Mortgage Loan; (ii) the Servicer and/or the Trustee have made two consecutive Monthly Payment Advances with respect to the Mortgage Loan (regardless of whether such Monthly Payment Advances have been reimbursed); (iii) the Borrower fails to make the entire Balloon Payment when due, and the Borrower has not delivered to the Servicer, on or before the due date of such Balloon Payment, a fully executed term sheet, refinancing commitment or signed purchase and sale agreement that is reasonably satisfactory in form and substance to the Servicer from an acceptable lender or servicer that provides that such refinancing or sale will occur within 120 days after the date on which such Balloon Payment will become due (provided that a Special Servicing Loan Event will occur if either (x) such refinancing does not occur before the expiration of the time period for refinancing specified in such documentation or (y) the Servicer is required to make a Monthly Payment Advance at any time prior to such refinancing or sale); (iv) the Servicer has received notice that the Borrower has become the subject as debtor of any bankruptcy, insolvency or similar proceeding, admitted in writing the inability to pay its debts as

 

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they come due or made an assignment for the benefit of creditors; (v) the Servicer has received notice of a foreclosure or threatened foreclosure of any lien on the Property; (vi) the Borrower has expressed in writing to the Servicer or Special Servicer an inability to pay the amounts owed under the Mortgage Loan in a timely manner; (vii) in the judgment of the Servicer (consistent with Accepted Servicing Practices), a default in the payment of principal or interest under the Mortgage Loan is reasonably foreseeable; or (viii) a default under the Mortgage Loan of which the Servicer has notice (other than a failure by the Borrower to pay principal or interest) and that materially and adversely affects the interests of the Certificateholders or any Companion Loan Holder has occurred and remains unremedied for the applicable grace period specified in the Mortgage Loan Documents (or, if no grace period is specified, 60 days); provided, that a Special Servicing Loan Event shall cease (a) with respect to the circumstances described in clauses (i), (ii) and (iii) above, when the Borrower has brought the Mortgage Loan current and, with respect to clauses (i) and (ii) above, thereafter made three consecutive full and timely Monthly Payments on the Mortgage Loan, and in the case of any of clauses (i), (ii) or (iii) pursuant to the workout of the Mortgage Loan, or (b) with respect to the circumstances described in clauses (iv), (v), (vi), (vii) and (viii) above, when such circumstances cease to exist in the judgment of the Servicer (consistent with the Accepted Servicing Practices); provided, in any case, that at that time no other circumstance exists (as described above) that would constitute a Special Servicing Loan Event.

 

“Specially Serviced Mortgage Loan”:  The Mortgage Loan during the occurrence of a Special Servicing Loan Event.

 

“Startup Day”:  As defined in Section 12.1(c).

 

“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 industry) of the Mortgage Loan but performs one or more discrete functions identified in Item 1122(d) of Regulation AB with respect to the Mortgage Loan under the direction or authority of the Servicer (or a Sub-Servicer of the Servicer), the Special Servicer or an Additional Servicer (or a Sub-Servicer of an Additional Servicer).

 

“Subordinate Companion Loan”: As defined in the Introductory Statement hereto.

 

“Subsequent Asset Status Report”:  As defined in Section 3.10(i).

 

“Sub-Servicer”:  Any Person that (i) Services the Mortgage Loan on behalf of the Servicer or any Sub-Servicer and (ii) is responsible for the performance (whether directly or through Sub-Servicers or Subcontractors) of a substantial portion of the servicing functions required to be performed by the Servicer, Servicing Function Participant or an Additional Servicer, under this Agreement, with respect to the Mortgage Loan, that are identified in Item 1122(d) of Regulation AB.

 

“Sub-Servicing Entity”: As defined in Section 7.1(a)(x).

 

“Successful Bidder”:  As defined in Section 7.2(b).

 

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“Successor Manager”:  Any Independent Contractor as selected or retained by the Special Servicer, on behalf of the Trustee, to serve as manager of the Foreclosed Property, which designation, as evidenced by a Rating Agency Confirmation from each Rating Agency, will not result in the downgrade, withdrawal or qualification of the ratings assigned to the Certificates or any Companion Loan Securities by such Rating Agency.

 

“Temporary Regulation S Global Certificate”:  As defined in Section 5.2(a).

 

“Terminated Party”:  As defined in Section 7.1(g).

 

“Terminating Party”:  As defined in Section 7.1(g).

 

“Third Party Purchaser”:  Parkmerced Grand Avenue Partners, LLC, or any Person that purchases the Certificates comprising the Required Third Party Purchaser Retention Amount 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 established at the direction of the Depositor for the benefit of the Holders of the Risk Retention Certificates.

 

“Threshold Collateral Issuer”:  A bank or other financial institution, the long term unsecured debt obligations of which are rated at least “A” by S&P, “A” by DBRS, “A” by Fitch and “A2” by Xxxxx’x or the short term obligations of which are rated at least “A-1+” by S&P, “R-1(middle)” by DBRS, “F-1” by Fitch and “P-1” by Xxxxx’x.

 

“Threshold Cure Holder”: As defined in Section 3.7.

 

“Threshold Event Cash Collateral Account”: As defined in Section 3.5.

 

“Threshold Event Collateral”:  Either (a) cash collateral held by, and acceptable to, the Servicer on behalf of the Trust or (b) an unconditional and irrevocable standby letter of credit with the Servicer on behalf of the Trust as the beneficiary, issued by a Threshold Collateral Issuer in an amount which, when added to the appraised value of the Property as determined pursuant to this Agreement, would cause the applicable Control Termination Event (or control-shift event consisting of the Class HRR Certificates ceasing to be the Controlling Class) not to occur. 

 

“Threshold Event Cure”:  As defined in Section 3.7.

 

“Transferee Affidavit”: As defined in Section 5.3(o)(ii).

 

“Transferor Letter”: As defined in Section 5.3(o)(ii).

 

“Trust”:  The trust created hereby and to be administered hereunder.  The Trust shall be named “MRCD 2019-PARK Mortgage Trust”.

 

“Trust A Notes”:  Note A-1 and Note A-2.

 

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“Trust Appraisal Reduction Amount”:  Any portion of the Appraisal Reduction Amount allocated to the Trust Notes.

 

“Trust Fund”:  The corpus of the Trust created by this Agreement, consisting of (i) the Trust Loan, including the Trust Notes together with the Mortgage File (exclusive of the original Companion Loan Notes) relating thereto (other than the rights of the Lender under the Securitization Cooperation Provisions, which rights shall be retained by the Trust Loan Sellers and shall not be assigned to the Trustee under this Agreement); (ii) all scheduled and unscheduled payments on or collections in respect of the Trust Notes; (iii) the Foreclosed Property (but only to the extent of the Trust’s interest in such Foreclosed Property); (iv) all revenues received in respect of the Foreclosed Property (but only to the extent of the Trust’s interest in such Foreclosed Property); (v) the Servicer’s, Special Servicer’s and the Trustee’s rights under the insurance policies with respect to the Property required to be maintained pursuant to this Agreement and any proceeds thereof (but only to the extent of the Trust’s interest therein); (vi) any indemnities or guaranties given as additional security for the Trust Notes (but only to the extent of the Trust’s interest therein); (vii) all funds deposited in the Collection Account (but only to the extent of the Trust’s interest therein), the Interest Reserve Account and the Distribution Account, including reinvestment income thereon (except as otherwise provided herein); (viii) any environmental indemnity agreements relating to the Property (but only to the extent of the Trust’s interest therein); (ix) the rights and remedies of the Depositor under the Trust Loan Purchase Agreement; (x) the security interest in the Reserve Accounts granted pursuant to Section 2.1 (but only to the extent of the Trust’s interest therein); (xi) the Rating Agency Reserve Account; (xii) all other assets included or to be included in the Lower-Tier REMIC for the benefit of the Upper-Tier REMIC; (xiii) the Uncertificated Lower-Tier Interests; (xiv) any Threshold Event Collateral and (xv) the proceeds of any of the foregoing.

 

“Trust Fund Expenses”:  Any unanticipated and certain other default related expenses incurred by the Trust (including, without limitation, all interest on Advances and any other unanticipated expenses of the Trust reimbursable or payable by the Borrower under the Mortgage Loan Agreement, to the extent not reimbursed by the Borrower or deemed a Nonrecoverable Advance) and all other amounts (such as indemnification payments, Special Servicing Fees, Work-out Fees and Liquidation Fees), in each case, permitted to be retained, reimbursed or withdrawn and remitted by the Servicer, the Special Servicer, the Operating Advisor or the Certificate Administrator (on behalf of itself or the Trustee), as applicable, from the Collection Account or the Distribution Account pursuant to this Agreement.

 

“Trust Loan”: As defined in the Introductory Statement.

 

“Trust Loan Purchase Agreement”:  As defined in the Introductory Statement.

 

“Trust Loan Seller Percentage Interest”:  As to Barclays, a 50.0% interest in the Trust Loan and as to CREFI, a 50.0% interest in the Trust Loan.

 

“Trust Loan Sellers”:  As defined in the Introductory Statement.

 

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“Trust Note Rate”:  With respect to any Trust Note, the Note Rate of such Trust Note.

 

“Trust Notes”: As defined in the Introductory Statement.

 

“Trust REMIC”:  The Upper-Tier REMIC or the Lower-Tier REMIC, individually or collectively, as the context may require.

 

“Trustee”:  Xxxxx Fargo Bank, National Association, in its capacity as trustee, or if any successor trustee is appointed as herein provided, such successor trustee.  Xxxxx Fargo Bank, National Association will perform its duties as trustee hereunder through its Corporate Trust Services Division.

 

“Trustee Fee”:  The portion of the Certificate Administrator Fee payable monthly by the Certificate Administrator to the Trustee pursuant to Section 8.5.

 

“Uncertificated Lower-Tier Interests”:  Any of the Class LA, Class LB, Class LC, Class LD-1, Class LD-2, Class LE, Class LF, Class LG, Class LJ and LHRR Uncertificated Interests.

 

“Uninsured Cause”:  Any cause of damage to the Property subject to the Mortgage such that the complete restoration of such Property is not fully reimbursable (but without regard to any applicable deductible provisions) by any insurance policy required to be maintained with respect thereto pursuant to the terms of the Mortgage Loan Documents or this Agreement.

 

“Unscheduled Payments”:  With respect to any Distribution Date, all payments and collections received with respect to the Mortgage Loan or upon foreclosure or liquidation of the Property (net of related foreclosure expenses and Liquidation Expenses) during the related Collection Period including, but not limited to, prepayments due to acceleration of the Mortgage Loan, Net Liquidation Proceeds, Net Proceeds, Net Foreclosure Proceeds, Condemnation Proceeds, Insurance Proceeds, voluntary prepayments and other payments and collections on such Mortgage Loan not scheduled to be received, other than Monthly Payments or the Balloon Payment.

 

“Upper-Tier Distribution Account”:  A subaccount of the Distribution Account, which shall be an asset of the Trust Fund and the Upper-Tier REMIC.

 

“Upper-Tier REMIC”:  One of the two separate REMICs comprising the Trust Fund, the assets of which consist of the Uncertificated Lower-Tier Interests and such amounts as shall from time to time be held in the Upper-Tier Distribution Account.

 

“U.S. Person”:  A Person that is (i) a citizen or resident alien of the United States; (ii) a corporation, partnership (except as provided in applicable Treasury regulations) or other entity created or organized in or under the laws of the United States, any State or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes; (iii) an estate whose income is subject to United States federal income tax regardless of the source of its income; (iv) a trust if a court within the United States is able to exercise

 

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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 a U.S. Person); or (v) any other Person that is disregarded as separate from its ownership for U.S. federal income tax purposes and whose owner is described in clauses (i) through (iv) above.

 

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

 

“Voting Rights”:  The portion of the voting rights of all of the Certificates that is allocated to any Certificate or Class of Certificates.  At any time that any Certificates are outstanding, the Voting Rights shall be allocated among the respective Classes of Certificateholders as a percentage equal to the aggregate Certificate Balance (and in connection with certain votes under this Agreement, taking into account any notional reduction in the Certificate Balance for Appraisal Reduction Amounts allocated to the Certificates), in each case, determined as of the prior Distribution Date, divided by the aggregate Certificate Balances (and in connection with certain votes under this Agreement, taking into account any notional reduction in the Certificate Balance for the Trust Appraisal Reduction Amounts allocated Certificates) of all Classes of Certificates (other than the Class R Certificates), in each case, determined as of the prior Distribution Date.  The Class R Certificates shall not be entitled to any Voting Rights.

 

“WAC Rate”: With respect to any Distribution Date is equal to applicable Net Trust Note Rates of the Trust A Notes as of the first day of the related Collection Period.

 

“Weighted Average Note Rate”:  With respect to any Distribution Date and the Mortgage Loan, the weighted average of the Note Rates (weighted based on the outstanding principal balance of the related Note as of such date).

 

“Xxxxx Fargo Bank, National Association”:  Xxxxx Fargo Bank, National Association, a national banking association, and its successors-in-interest.

 

“Withheld Amounts”:  As defined in Section 3.4(e).

 

“Work-out Fee”:  A fee payable to the Special Servicer pursuant to Section 3.17(c) equal to 0.25% of each payment of principal and interest (other than Default Interest) made on the Mortgage Loan following the execution of a written agreement with the Borrower negotiated by the Special Servicer, if a Special Servicing Loan Event is terminated following resolution of such Special Servicing Loan Event by such agreement (for so long as another Special Servicing Loan Event does not occur); provided that any such Work-out Fee shall be reduced by the Net Modification Fees paid by the Borrower with respect to the Mortgage Loan that were received and retained by the Special Servicer, but only to the extent those Net Modification Fees have not previously been deducted from a Work-out Fee or Liquidation Fee (each amount of the Work-out Fee will be reduced to an amount (but not to an amount less than zero) until the aggregate amount of such reductions equals such Net Modification Fees); provided further that such Work-out Fee will be subject to an aggregate $1,000,000 cap.

 

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“Yield Maintenance Premium”: As defined in the Mortgage Loan Agreement.

 

1.2.         Interpretation. (a)  Whenever this Agreement refers to a Distribution Date and a “related” Collection Period, Loan Interest Accrual Period, Certificate Interest Accrual Period or Payment Date, such reference shall be to the Collection Period, Loan Interest Accrual Period, Certificate Interest Accrual Period or Payment Date, as applicable, occurring immediately preceding or most recently ended prior to, as applicable, such Distribution Date.

 

(b)          Whenever this Agreement refers to a Distribution Date and an “applicable” Pass-Through Rate, such reference shall be to the Pass-Through Rate for the applicable Class for the related Certificate Interest Accrual Period.

 

(c)          The words “hereof”, “herein”, and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section and Exhibit references contained in this Agreement are references to Sections and Exhibits in or to this Agreement unless otherwise specified.

 

(d)          Calculations of interest on the Regular Certificates shall be computed on the basis of a 360-day year consisting of twelve 30-day months.

 

1.3.         Certain Calculations in Respect of the Trust Loan or the Mortgage Loan. (a)  All amounts collected by or on behalf of the Trust in respect of the Mortgage Loan in the form of payments from or on behalf of the Borrower, Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds (other than amounts required to be applied to the restoration, preservation or repair of the Property or to be released to the Borrower in accordance with the Mortgage Loan Documents) shall be applied to amounts due and owing under the Mortgage Loan Documents and the Co-Lender Agreement (including for principal and accrued and unpaid interest) in accordance with the express provisions of the Mortgage Loan Documents and Co-Lender Agreement; provided, however, in the absence of such express provisions or if and to the extent that such terms authorize the mortgagee to use its discretion and in any event for purposes of calculating distributions hereunder after a Mortgage Loan Event of Default, all such amounts collected that are not required to be distributed to the Companion Loan Holders pursuant to the Co-Lender Agreement shall be deemed to be applied in the following order of priority: first, as a recovery of any unreimbursed Advances plus interest accrued thereon at the Advance Rate and, if applicable, unpaid Liquidation Expenses and unpaid Trust Fund Expenses (including Special Servicing Fees, Liquidation Fees and Work-out Fees previously paid by the Trust from general collections); second, as a recovery of Nonrecoverable Advances or interest thereon to the extent previously reimbursed from principal collections with respect to the Mortgage Loan; third, as a recovery of accrued and unpaid interest on the Trust A Notes, Component B-A and Component B-HRR that have not been the subject of a Monthly Payment Advance, to the extent of the excess of (i) accrued and unpaid interest on each outstanding Trust A Note or Component B-A and Component B-HRR at the applicable Net Trust Note Rate or Net Component Rate, respectively (without giving effect to any increase in such Net Trust Note Rate or Net Component Rate required under the Mortgage Loan Agreement as a result of a Mortgage Loan Event of Default) through and including the end of the Loan Interest Accrual Period in which such collections were received by or on behalf of the Trust, over (ii) the cumulative amount of

 

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the reductions (if any) (a) in the amount of the interest portion of the related Monthly Payment Advances for the Trust Loan that have theretofore occurred under Section 3.23(a) in connection with Trust Appraisal Reduction Amounts or (b) with respect to any accrued and unpaid interest that was not advanced due to a determination that the related Monthly Payment Advance would be a Nonrecoverable Advance, the amount of interest that (absent such determination of nonrecoverability preventing such Monthly Payment Advance from being made) would not have been advanced because of the reductions in the amount of related Monthly Payment Advance that would have occurred in connection with related Trust Appraisal Reduction Amounts (to the extent that collections have not been applied to accrued and unpaid interest on the Trust Note and the Companion Loan Note as a recovery of accrued and unpaid interest pursuant to clause fifth below on earlier dates) (such accrued and unpaid interest be applied sequentially to accrued and unpaid interest on, first the Trust A Notes, second Component B-A, and third Component B-HRR, in each case until their respective principal balances have been reduced to zero); fourth, as a recovery of principal due and payable on the Trust A Notes and each Component, including by reason of acceleration of the Mortgage Loan following a Mortgage Loan Event of Default (or, if the Trust Loan has been liquidated, as a recovery of principal to the extent of its entire remaining unpaid principal balance) (such recovery of principal to be applied, first to the Trust A Notes, second to Component B-A, and third to Component B-HRR, in each case until their respective principal balances have been reduced to zero); fifth, as a recovery of accrued and unpaid interest on the Trust Loan to the extent of the cumulative amounts of reductions (if any) in the amount of the interest portion of the related Monthly Payment Advances for the Trust Loan that have theretofore occurred under Section 3.23(a) in connection with Trust Appraisal Reduction Amounts or would have occurred in connection with Trust Appraisal Reduction Amounts but for such Monthly Payment Advance not having been made as a result of a determination by the Servicer that such Monthly Payment Advance would have been a Nonrecoverable Advance (to the extent that collections have not been applied as recovery of accrued and unpaid interest pursuant to this clause fifth on earlier dates) (such accrued and unpaid interest to be applied to accrued and unpaid interest sequentially on first the Trust A Notes, second Component B-A, and third Component B-HRR, in each case until their respective principal balances have been reduced to zero); sixth, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments and insurance premiums and similar items; seventh, as a recovery of any other reserves to the extent then required to be held in escrow; eighth, as a recovery of any Yield Maintenance Premiums on the Trust Loan; ninth, as a recovery of any Assumption Fees and Modification Fees then due and owing under the Mortgage Loan; tenth, as a recovery of any Default Interest or late charges then due and owing under the Mortgage Loan; and eleventh, as a recovery of any other amounts then due and owing under the Mortgage Loan (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), provided that, to the extent required under the REMIC Provisions of the Code, payments or proceeds received with respect to release of any portion of the Property (including following a condemnation) from the lien of the applicable Mortgage and Mortgage Loan Documents must be allocated to reduce the principal balance of the Mortgage Loan in the manner permitted by such REMIC Provisions if, immediately following such release, the loan-to value ratio of the Mortgage Loan exceeds 125% (based solely on real property and excluding any personal property and going concern value).

 

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(b)         Collections by or on behalf of the Trust in respect of the Foreclosed Property (exclusive of amounts to be applied to the payment of the costs of operating, managing, leasing, maintaining and disposing of the Foreclosed Property) that are not required to be distributed to the Companion Loan Holders pursuant to the Co-Lender Agreement shall be deemed to be applied in the following order of priority: first, as a recovery of any related and unreimbursed Advances plus interest accrued thereon and, if applicable, unpaid Liquidation Expenses and unpaid Trust Fund Expenses; second, as a recovery of Nonrecoverable Advances or interest thereon to the extent previously reimbursed from principal collections with respect to the Mortgage Loan; third, as a recovery of accrued and unpaid interest on the Trust A Notes, Component B-A and Component B-HRR that have not been the subject of a Monthly Payment Advance, to the extent of the excess of (i) accrued and unpaid interest on each outstanding Trust A Note or Component B-A and Component B-HRR at the applicable Net Trust Note Rate or Net Component Rate, respectively (without giving effect to any increase in such Net Trust Note Rate or Net Component Rate required under the Mortgage Loan Agreement as a result of a Mortgage Loan Event of Default) through and including the end of the Loan Interest Accrual Period in which such collections were received by or on behalf of the Trust, over (ii) the cumulative amount of the reductions (if any) (a) in the amount of the interest portion of the related Monthly Payment Advances for the Trust Loan that have theretofore occurred under Section 3.23(a) in connection with Trust Appraisal Reduction Amounts or (b) with respect to any accrued and unpaid interest that was not advanced due to a determination that the related Monthly Payment Advance would be a Nonrecoverable Advance, the amount of interest that (absent such determination of nonrecoverability preventing such Monthly Payment Advance from being made) would not have been advanced because of the reductions in the amount of related Monthly Payment Advance that would have occurred in connection with related Trust Appraisal Reduction Amounts (to the extent that collections have not been applied as a recovery of accrued and unpaid interest pursuant to clause fifth below on earlier dates) (such accrued and unpaid interest be applied sequentially to accrued and unpaid interest on, first the Trust A Notes, second Component B-A, and third Component B-HRR, in each case until their respective principal balances have been reduced to zero); fourth, as a recovery of principal due and payable on the Trust Loan, including by reason of acceleration of the Trust Loan following a Mortgage Loan Event of Default (or, if the Mortgage Loan has been liquidated, as a recovery of principal to the extent of its entire remaining unpaid principal balance), (such recovery of principal to be applied sequentially on the Trust A Note and the B Note, in that order, until their respective principal balances have been reduced to zero; fifth, as a recovery of accrued and unpaid interest on the Trust Loan to the extent of the cumulative amount of the reductions (if any) in the amount of the interest portion of the related Monthly Payment Advances for the Trust Loan that have theretofore occurred under Section 3.23(a) in connection with Trust Appraisal Reduction Amounts or would have occurred in connection with Trust Appraisal Reduction Amounts but for such Monthly Payment Advance not having been made as a result of a determination by the Servicer that such Monthly Payment Advance would have been a Nonrecoverable Advance (to the extent that collections have not theretofore been applied as a recovery of accrued and unpaid interest pursuant to this clause fifth on earlier dates) (such accrued and unpaid interest to be applied to accrued and unpaid interest sequentially on first the Trust A Notes, second Component B-A, and third Component B-HRR, in each case until their respective principal balances have been reduced to zero); sixth, as a recovery of any Yield Maintenance Premium on the Trust Loan; seventh, as a recovery of any Default Interest then deemed to be due and owing under the

 

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Mortgage Loan; and eighth, as a recovery of any other amounts deemed to be due and owing in respect of the Mortgage Loan (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).

 

(c)            All net present value calculations and determinations made under this Agreement with respect to the Mortgage Loan, the Trust Loan, the Companion Loans or the Property or Foreclosed Property (including for purposes of the definition of “Accepted Servicing Practices”) shall be made using a discount rate appropriate for the type of cash flows being discounted; namely (i) for principal and interest payments on the Mortgage Loan, the Trust Loan or the Companion Loans, or sale of the Mortgage Loan, the Trust Loan or the Companion Loans if it is in default by the Special Servicer, the higher of (1) the rate determined by the Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar debt of the Borrower as of such date of determination and (2) the Weighted Average Note Rate on the Mortgage Loan, the Trust Loan or the Companion Loans, as the case may be, based on its outstanding principal balance and (ii) for all other cash flows, including property cash flow, the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal).

 

2.         DECLARATION OF TRUST; ORIGINAL ISSUANCE OF CERTIFICATES

 

2.1.          Creation and Declaration of Trust; Conveyance of the Trust Loan. (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, delivers, sets over, and otherwise conveys or causes to be conveyed in trust to the Trustee for the benefit of Certificateholders, without recourse (except to the extent otherwise provided herein and in the Mortgage Loan Documents), the Depositor’s right, title and interest, whether now owned or hereafter acquired, now existing or hereafter arising, wherever located, in and to all of the items referred to in the definition of “Trust Fund”, including without limitation (i) all rights and remedies of the Depositor under the Trust Loan Purchase Agreement, (ii) all right, title and interest of the Depositor in, to and under the Reserve Accounts, (iii) all right, title and interest of the Depositor in and to the Trust Loan as of the Closing Date and (iv) all other assets included or to be included in the Lower-Tier REMIC for the benefit of the Upper-Tier REMIC.  Such transfer and assignment includes all payments of interest on the Trust Loan due and payable on and after the initial Certificate Interest Accrual Period and all principal payments received on or after the initial Certificate Interest Accrual Period.

 

Such sale, transfer and assignment include any related escrow accounts and any security interest under the Trust Loan (whether in real or personal property and whether tangible or intangible) and all related rights to payments made or required to be made to the Depositor by the Borrower or any other party under the Mortgage Loan Documents relating to the Trust Loan.  Such sale, transfer and assignment further include all Mortgage Loan Documents relating to the Trust Loan (other than the Securitization Cooperation Provisions). Notwithstanding anything to the contrary herein, the rights of the Lender under the Securitization Cooperation Provisions shall be retained by the Trust Loan Sellers and shall not be part of the Trust Fund.

 

(b)           In connection with such sale, transfer and assignment, the Depositor does hereby deliver to, and deposit with the Custodian (i) the original Note (or if any Note has been

 

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lost, a lost note affidavit with a customary indemnity provision, together with a copy of such Note), endorsed without recourse to the order of the Trustee in the following form: “Pay to the order of Xxxxx Fargo Bank, National Association, solely in its capacity as Trustee in trust for Holders of MRCD 2019-PARK Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2019-PARK, without recourse or warranty except as set forth in the Trust and Servicing Agreement, dated as of December 19, 2019, among Barclays Commercial Mortgage Securities LLC, as Depositor, KeyBank National Association, as Servicer and as Special Servicer, Xxxxx Fargo Bank, National Association, as Trustee, Certificate Administrator and Custodian, and Park Bridge Lender Services LLC, as Operating Advisor”, which Note and all endorsements thereon shall show a complete chain of endorsement from the original payee(s) to the Trustee and (ii) on or before the fifth day after the Closing Date (the “Delivery Date”), the following documents or instruments with respect to the Mortgage Loan (the “Mortgage File”), in each case executed by the parties thereto:

 

(A)       the original Trust Notes (or if any Trust Note has been lost, a lost affidavit with a customary indemnity provision, together with a copy of such Trust Note), fully executed and endorsed without recourse to the order of the Trustee in the following form:  “Pay to the order of Xxxxx Fargo Bank, National Association, solely in its capacity as Trustee in trust for Holders of MRCD 2019-PARK Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2019-PARK, without recourse or warranty except as set forth in the Trust and Servicing Agreement, dated as of December 19, 2019, among Barclays Commercial Mortgage Securities LLC, as Depositor, KeyBank National Association, as Servicer and as Special Servicer, Xxxxx Fargo Bank, National Association, as Trustee, Certificate Administrator and Custodian, and Park Bridge Lender Services LLC, as Operating Advisor”, which Trust Notes and all endorsements thereon shall show a complete chain of endorsement from the original payee(s) to the Trustee;

 

(B)          the original or a copy of the Loan Agreement, including all amendments thereto;

 

(C)          (i) the original or a copy of the recorded counterpart of the Mortgage or (ii) a certified copy of the Mortgage;

 

(D)         a copy of the Mezzanine Loan Agreement, the Mezzanine Loan notes, each mezzanine pledge agreement, each mezzanine contribution agreement, each mezzanine guaranty agreement, each mezzanine environmental indemnity, each mezzanine assignment of title insurance proceeds, each mezzanine subordination of management agreement and an original of the Intercreditor Agreement;

 

(E)         the original recorded Assignment of Mortgage, in favor of the Trustee, and in a form that is complete and suitable for recording in the jurisdiction in which the Property is located to “Xxxxx Fargo Bank, National Association, solely in its capacity as Trustee for MRCD 2019-PARK Mortgage

 

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Trust, Commercial Mortgage Pass-Through Certificates, Series 2019-PARK and the Companion Loan Holders”, without recourse;

 

(F)          the original or a copy of the recorded Assignment of Leases;

 

(G)         the original assignment of the recorded Assignment of Leases, in favor of the Trustee, in trust for the benefit of the Certificateholders and the Companion Loan Holders, without recourse;

 

(H)          an original or a copy of any non-recourse carve-out guaranties, if any;

 

(I)           an original or a copy of any environmental indemnities;

 

(J)           [Reserved];

 

(K)         an original or a copy of any assignment of management agreement;

 

(L)         where applicable, a copy of each UCC-1 financing statement (and an original thereof shall have been sent for filing), together with a fully executed UCC-3 financing statement, in a form that is complete and suitable for filing, disclosing the assignment from the secured party named in such UCC-1 financing statement to the Trustee of the security interest in the personal property and other UCC collateral constituting security for repayment of the Mortgage Loan;

 

(M)       a copy of the lender’s title insurance policy obtained in connection with the origination of the Mortgage Loan (or an executed irrevocable agreement by the title insurance company to issue a title insurance policy pursuant to and in conformity with (1) a marked, signed commitment to insure and (2) a pro forma title insurance policy), together with any endorsements thereto;

 

(N)          the original or a copy of the Co-Lender Agreement;

 

(O)          [Reserved];

 

(P)          an original or a copy of any account control agreement;

 

(Q)          an original or a copy of any cash management agreement;

 

(R)          copies of all other instruments, if any, constituting additional security for the repayment of the Mortgage Loan; and

 

(S)          any and all amendments, modifications and supplements to, and waivers related to, any of the foregoing.

 

The Depositor shall provide the Servicer promptly following the Closing Date, at its own expense, with copies of all such documents in its possession constituting part of the Mortgage File.  Where the Depositor is not expressly required to deliver or cause to be delivered

 

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originals of documents and/or instruments referred to in this Section 2.1(b), copies of such documents and/or instruments may be delivered electronically via PDF.  For the avoidance of doubt, the documents referred to in clauses (B), (C), (F), (H), (I), (K), (L), (M), (N), (P), (Q), (R) and (S) may be delivered electronically via PDF or copies may be delivered of such documents.

 

In addition, the Depositor shall deliver or cause to be delivered to the Servicer for its review, all required insurance policies or certificates issued by the insurers showing such insurance to be in effect on the Closing Date, together with proof of payment of premiums relating thereto (which may consist of such policies or certificates).

 

Each Assignment of Mortgage and UCC-3 financing statements to be filed in the appropriate filing offices or record depositories shall be filed or recorded, as applicable, by a designee of the Depositor, with instructions to return all such recorded documents, or other evidences of filing issued by the applicable governmental offices, to the Custodian, with a copy to the Servicer.  In the event that any such document is determined to be defective or not to be in compliance with the requirements of the applicable filing office or recording depository, or if any such document is lost or returned unrecorded because of a defect therein, the Depositor shall promptly prepare a substitute document, and shall cause each such document to be duly submitted for filing or recording, as applicable.  Notwithstanding anything to the contrary contained in this Section 2.1(b), in those instances where the public recording office retains the original Mortgage or Assignment of Mortgage, if applicable, after any has been recorded, the obligations of the Depositor hereunder and the obligations of the Trust Loan Sellers under the Trust Loan Purchase Agreement shall be deemed to have been satisfied upon delivery to the Custodian of a copy of such Mortgage, or Assignment of Mortgage, if applicable, certified by the public recording office to be a true and complete copy of the recorded original thereof.

 

The ownership of the Trust Notes, all other contents of the Mortgage File and the other assets in the Trust Fund shall be vested in the Trust or the Trustee for the benefit of the Certificateholders and (other than the Trust Notes) the Companion Loan Holders.  The Depositor, the Servicer and the Special Servicer agree to take no action inconsistent with the Trustee’s ownership of the Trust Loan and to promptly indicate to all inquiring parties that the Trust Loan has been sold and to claim no ownership interest in the Trust Loan.  All original documents relating to the Trust Loan that are not delivered to the Custodian are and shall be held by the Depositor, the Servicer or the Special Servicer, as the case may be, in trust for the benefit of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section 2.1(b) to be a part of a Mortgage File, such document shall be delivered promptly to the Custodian.

 

2.2.        Acceptance by the Trustee and the Custodian. (a)  By its execution and delivery of this Agreement, the Trustee acknowledges the assignment to it by the Depositor of the Trust Fund in good faith without notice of adverse claims and the Custodian declares that it holds and will hold or will cause to be held such documents as are delivered to it constituting the Mortgage File (to the extent the documents constituting the Mortgage File are actually delivered to it) in trust, upon the conditions herein set forth, for the use and benefit of all present and future Certificateholders and the Companion Loan Holders.

 

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(b)                      The execution and delivery of this Agreement by the Certificate Administrator shall constitute certification by the Custodian that (i) the original Trust Notes specified in clause (i) of the definition of “Mortgage File” and all allonges thereto, if any, have been received by the Custodian; and (ii) such original Trust Notes have been reviewed by the Custodian and (A) appear regular on their face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrower), (B) appear to have been executed and (C) purport to relate to the Trust Loan.  The Custodian agrees to review or cause to be reviewed the Mortgage File within thirty (30) days after the Closing Date, and to deliver to the Depositor, the Trust Loan Sellers, the Companion Loan Holders, the Trustee, the Certificate Administrator, the Directing Holder, the Servicer and the Special Servicer a report certifying, subject to any exceptions found by it in such review, that (A) all documents referred to in Section 2.1(b) have been received, and (B) all documents have been executed, appear to be what they purport to be, purport to be recorded or filed (as applicable) and have not been torn, mutilated or otherwise defaced, and appear on their faces to relate to the Mortgage Loan.  The Custodian shall have no responsibility for reviewing the Mortgage File except as expressly set forth in this Section 2.2(b).  The Custodian shall be under no duty or obligation to inspect, review, or examine any such documents, instruments or certificates to independently determine that they are valid, genuine, enforceable, legally sufficient, duly authorized, or appropriate for the represented purpose, whether the text of any assignment or endorsement is in proper or recordable form (except to determine if the endorsement conforms to the requirements of Section 2.1(b)), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, to independently determine that any document has actually been filed or recorded in the appropriate office, that any document is other than what it purports to be on its face, or whether the title insurance policies relate to the Property.

 

If the Depositor cannot deliver, or cause to be delivered, any of the documents and/or instruments referred to in clauses (ii)(C), (D), (E), (F) and (G) of Section 2.1(b) with evidence of filing or recording thereon (if intended to be recorded or filed), solely because of a delay caused by the public filing or recording office where such document or instrument has been delivered for filing or recordation, the delivery requirements of Section 2.1 shall be deemed to have been satisfied on a provisional basis as of the Delivery Date as to such non-delivered document or instrument, and such non-delivered document or instrument shall be deemed to have been included in the Mortgage File, if a duplicate original or a photocopy of such non-delivered document or instrument (certified by the applicable public filing or recording office, the applicable title insurance company or the Trust Loan Sellers to be a true and complete copy of the original thereof submitted for filing or recording) is delivered to the Custodian on or before the Delivery Date, and either the original of such non-delivered document or instrument, or a photocopy thereof (certified by the appropriate county recorder’s office, in the case of the documents and/or instruments referred to in clause (ii)(C), (D), (E), (F) and (G) of Section 2.1(b) to be a true and complete copy of the original thereof submitted for recording), with evidence of filing or recording thereon, is delivered to the Custodian within 180 days of the Closing Date (or within such longer period, not to exceed 18 months, after the Closing Date as the Custodian shall consent to so long as the Depositor or Trust Loan Seller provides a certification in writing to the Custodian no less often than every 90 days that it is attempting in good faith to obtain from the appropriate public filing office or county recorder’s office such original or photocopy). 

 

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(c)         Upon the first anniversary following the Closing Date, the Custodian shall deliver a final exception report as to any remaining documents that are not in the Mortgage File, whereupon, within 90 days, the Depositor shall either:  (i) cause such document deficiency to be cured; or (ii) if such exception is a Material Document Defect, use commercially reasonable efforts to cause the Trust Loan Sellers to (1) repurchase the Trust Loan pursuant to the Trust Loan Purchase Agreement or (2) indemnify the Trust for losses directly related to such Material Breach or Material Document Defect (but only if such Material Document Defect is not related to the Trust Loan not being a Qualified Mortgage, and subject to the receipt of a Rating Agency Confirmation from each Rating Agency with respect to such action) pursuant to the Trust Loan Purchase Agreement if such exception is a Material Document Defect.  Notwithstanding anything to the contrary herein, no Defect (except for a Defect with respect to the documents described in clause (i) of Section 2.1(b) and the documents described in clauses (ii)(A), (C) and (E) of Section 2.1(b) or a Defect that relates to the Trust Loan being other than a Qualified Mortgage) shall be considered to be a Material Document Defect unless the document with respect to which a Defect exists is required in connection with (A) an imminent enforcement of the mortgagee’s rights or remedies under the Trust Loan; (B) defending any claim asserted by the Borrower or third party with respect to the Trust Loan; (C) establishing the validity or priority of any lien on any collateral securing the Trust Loan; or (D) any immediate significant servicing obligations. The Trustee’s sole remedy against the Trust Loan Sellers in connection with a Material Document Defect is to enforce the Trust Loan Sellers’ cure, repurchase and/or indemnity obligations in accordance with the provisions of the Trust Loan Purchase Agreement.

 

(d)          If the Servicer or the Special Servicer (i) receives a Repurchase Request (the receiving Servicer or Special Servicer, as applicable, the “Repurchase Request Recipient” with respect to such Repurchase Request); or (ii) receives any withdrawal of a Repurchase Request by the Person making such Repurchase Request (a “Repurchase Request Withdrawal”) or such a Repurchase Request or Repurchase Request Withdrawal is forwarded to the Servicer or Special Servicer by another party hereto, then the Repurchase Request Recipient shall deliver notice of such Repurchase Request or Repurchase Request Withdrawal (each, a “Rule 15Ga-1 Notice”) to the Certificate Administrator, the Depositor, the Companion Loan Holders and the Trust Loan Sellers, in each case within ten (10) Business Days from such party’s receipt thereof.  Each Rule 15Ga-1 Notice may be delivered by electronic means.

 

Each Rule 15Ga-1 Notice shall include (i) the identity of the Property, (ii) the date the Repurchase Communication of the Repurchase Request or Repurchase Request Withdrawal is 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.

 

A Repurchase Request Recipient shall not 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 2.2(d) is so provided only to assist the Trust Loan Sellers and Depositor or their respective Affiliates to comply with Rule 15Ga-1 under the Exchange Act and any other requirement of law or regulation and (ii) (A) no action taken by, or inaction of, a Repurchase Request Recipient and (B) no information provided pursuant to this Section 2.2(d)

 

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by a Repurchase Request Recipient, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to the 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 or the Certificate Administrator 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 Servicer (or to the Special Servicer, if a Special Servicing Loan Event has occurred and is continuing), and include the following statement in the related correspondence: “This is a “Repurchase Request” or a “Repurchase Request Withdrawal” under Section 2.2 of the Trust and Servicing Agreement relating to MRCD 2019-PARK Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2019-PARK 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 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 2.2(d) with respect to such Repurchase Request or Repurchase Request Withdrawal.

 

If the Depositor, the Trustee or the Certificate Administrator receives notice or has actual knowledge of a Repurchase Request Withdrawal of which notice has been previously received or given, and such notice was not received from or copied to the Servicer or the Special Servicer, then such party shall promptly give notice of such Repurchase Request Withdrawal to the Servicer or the Special Servicer, as applicable.

 

In the event that the Mortgage Loan is repurchased pursuant to Section 2.9, the Servicer or Special Servicer shall promptly notify the Depositor, the Certificate Administrator and the Trustee of such repurchase.

  

2.3.         Representations and Warranties of the Trustee. (a) Xxxxx Fargo Bank, National Association, as Trustee, hereby represents and warrants to the other parties hereto and for the benefit of the Certificateholders and the Companion Loan Holders that as of the Closing Date:

 

(i)           the Trustee is a national banking association, duly organized, validly existing, and is in good standing under the laws of the United States; the Trustee possesses and shall continue to possess all requisite authority, power, licenses, permits, franchise and approvals to conduct its business and to execute, deliver and comply with its obligations under this Agreement;

 

(ii)           the execution and delivery of this Agreement by the Trustee and its performance and compliance with the terms of this Agreement will not violate the Trustee’s articles of association or 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

 

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material contract, agreement or other instrument to which the Trustee is a party or which may be applicable to the Trustee or any of its assets;

 

(iii)          except to the extent that the laws of any jurisdiction in which a part of the Trust Fund may be located require that a co-trustee or separate trustee be appointed to act with respect to the Property as contemplated by Section 8.10, the Trustee has the full power and authority to enter into and consummate the transactions 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 and binding obligation of the Trustee, enforceable against it in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, conservatorship, reorganization, receivership, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);

 

(v)          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 or any order, law or regulation of any federal, state, municipal or governmental agency of or in the United States of America having jurisdiction, which violation would have consequences that would materially and adversely affect the condition (financial or other) or operations of the Trustee or its properties or might have consequences that would materially affect the performance of its duties hereunder or thereunder;

 

(vi)          no consent, approval, authorization or order of, or registration of filing with, or notice to any court, governmental or regulatory agency or body, is required for the execution, delivery and performance by the Trustee of this Agreement or if required, such approval has been obtained prior to the Closing Date;

 

(vii)        no litigation is pending or, to the best of the Trustee’s knowledge, threatened against the Trustee which would prohibit its entering into or materially and adversely affect its ability to perform its obligations under this Agreement; and

 

(viii)      the Trustee is covered by errors and omissions insurance coverage which is in full force and effect and/or otherwise complies with the requirements of Section 8.6(c).

 

(b)           The respective representations and warranties of the Trustee set forth in this Section 2.3 shall survive until the termination of this Agreement, and shall inure to the benefit of the other parties hereto and the Certificateholders and the Companion Loan Holders.

 

2.4.           Representations and Warranties of the Certificate Administrator. (a) Xxxxx Fargo Bank, National Association, as Certificate Administrator, hereby represents and

 

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warrants to the other parties hereto and for the benefit of the Certificateholders and the Companion Loan Holders that as of the Closing Date:

 

(i)           the Certificate Administrator is a national banking association, duly organized, validly existing, and is in good standing under the laws of the United States; the Certificate Administrator possesses and shall continue to possess all requisite authority, power, licenses, permits, franchise and approvals to conduct its business and to execute, deliver and comply with its obligations under this Agreement;

 

(ii)           the execution and delivery of this Agreement by the Certificate Administrator and its performance and compliance with the terms of this Agreement will not violate the Certificate Administrator’s articles of association or 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 contract, agreement or other instrument to which the Certificate Administrator is a party or which may be applicable to the Certificate Administrator or any of its assets;

 

(iii)         the Certificate Administrator has the full power and authority to enter into and consummate the transactions 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 and binding obligation of the Certificate Administrator, enforceable against it in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, conservatorship, reorganization, receivership, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);

 

(v)          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 or any order, law or regulation of any federal, state, municipal or governmental agency of or in the United States of America having jurisdiction, which violation would have consequences that would materially and adversely affect the condition (financial or other) or operations of the Certificate Administrator or its properties or might have consequences that would materially affect the performance of its duties hereunder or thereunder;

 

(vi)          no consent, approval, authorization or order of, or registration of filing with, or notice to any court, governmental or regulatory agency or body, is required for the execution, delivery and performance by the Certificate Administrator of this Agreement or if required, such approval has been obtained prior to the Closing Date;

 

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(vii)       the Certificate Administrator is covered by errors and omissions insurance coverage which is in full force and effect and/or otherwise complies with the requirements of Section 8.6(b);

 

(viii)       no litigation is pending or, to the best of the Certificate Administrator’s knowledge, 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; and

 

(ix)           to its actual knowledge, it is not Risk Retention Affiliated with the Third Party Purchaser.

 

(b)          The respective representations and warranties of the Certificate Administrator set forth in this Section 2.4 shall survive until the termination of this Agreement, and shall inure to the benefit of the other parties hereto and the Certificateholders and the Companion Loan Holders.

 

2.5.          Representations and Warranties of the Servicer. (a) KeyBank National Association, as Servicer, hereby represents and warrants to the other parties hereto and for the benefit of the Certificateholders and the Companion Loan Holders that as of the Closing Date:

 

(i)            it is a national banking association duly organized, validly existing, and in good standing under the laws of the United States; it is, and throughout the term of this Agreement shall remain, duly authorized and qualified to transact business in the jurisdiction where the Property is located to the extent required by applicable law and necessary to ensure the enforceability of the Trust Loan and Companion Loans in accordance with the terms thereof and hereof; it possesses and shall continue to possess all requisite authority, power, licenses, permits, franchise, and approvals to conduct its business and to execute, deliver, and comply with its obligations under this Agreement;

   

(ii)           the execution and delivery of this Agreement and its performance of and compliance with the terms hereof in the manner contemplated by this Agreement will not violate its articles of association or by-laws, or any other material instrument governing its operations, or any laws, regulations, orders or decrees of any governmental authority applicable to it and will not constitute a default (or any event which, with notice or lapse of time or both, would constitute a default) under any material contract, agreement, or other instrument to which it is a party or which may be applicable to any of its assets, which violation or default would have consequences that would materially and adversely affect its financial condition or operations or its properties taken as a whole or its ability to perform its obligations hereunder, or materially impair the ability of the Trust Fund to realize on the Collateral;

 

(iii)          this Agreement constitutes its valid, legal, and binding obligation enforceable against it in accordance with its terms, subject to bankruptcy and receivership laws and other similar laws of general application affecting rights of creditors and subject

 

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to the application of the rules of equity, including those respecting the availability of specific performance;

 

(iv)          it has the full power and authority to enter into and consummate the transactions contemplated by this Agreement; this Agreement has been duly executed and delivered by it;

 

(v)          all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by it have been obtained or made;

 

(vi)        there is no pending action, suit or proceeding, arbitration or governmental investigation against it, the outcome of which, in its reasonable judgment, could reasonably be expected to prohibit it from entering into this Agreement or materially and adversely affect its ability to perform its obligations under this Agreement;

 

(vii)         it has errors and omissions insurance and fidelity bond coverage which is in full force and effect or is self-insuring with respect to such risks, which in either case, complies with the requirements of Section 3.11 hereof; and

 

(viii)        to its actual knowledge, the Servicer is not Risk Retention Affiliated with the Third Party Purchaser.

 

(b)          The representations and warranties of the Servicer set forth in this Section 2.5 shall survive until termination of this Agreement, and shall inure to the benefit of the parties hereto and the Certificateholders and the Companion Loan Holders.

 

2.6.          Representations and Warranties of the Special Servicer. (a) KeyBank, as Special Servicer, hereby represents and warrants to the other parties hereto and for the benefit of the Certificateholders and the Companion Loan Holders that as of the Closing Date:

 

(i)            it is a national banking association duly organized, validly existing, and in good standing under the laws of the United States; it is, and throughout the term of this Agreement shall remain, duly authorized and qualified to transact business in the jurisdiction where the Property is located to the extent required by applicable law and necessary to ensure the enforceability of the Trust Loan and the Companion Loans in accordance with the terms thereof and hereof; it possesses and shall continue to possess all requisite authority, power, licenses, permits, franchise, and approvals to conduct its business and to execute, deliver, and comply with its obligations under this Agreement;

 

(ii)           the execution and delivery of this Agreement and its performance of and compliance with the terms hereof in the manner contemplated by this Agreement will not violate its articles of association or by-laws, or any other material instrument governing its operations, or any laws, regulations, orders or decrees of any governmental authority applicable to it and will not constitute a default (or any event which, with notice or lapse of time or both, would constitute a default) under any material contract, agreement, or other instrument to which it is a party or which may be applicable to any of its assets,

 

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which violation or default would have consequences that would materially and adversely affect its financial condition or operations or its properties taken as a whole or its ability to perform its obligations hereunder, or materially impair the ability of the Trust Fund to realize on the Collateral;

 

(iii)          this Agreement constitutes its valid, legal, and binding obligation enforceable against it in accordance with its terms, subject to bankruptcy and receivership laws and other similar laws of general application affecting rights of creditors and subject to the application of the rules of equity, including those respecting the availability of specific performance;

 

(iv)          it has the full power and authority to enter into and consummate the transactions contemplated by this Agreement; this Agreement has been duly executed and delivered by it;

 

(v)           all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by it have been obtained or made;

 

(vi)          there is no pending action, suit or proceeding, arbitration or governmental investigation against it, the outcome of which, in its reasonable judgment, could reasonably be expected to prohibit it from entering into this Agreement or materially and adversely affect its ability to perform its obligations under this Agreement;

 

(vii)         it has errors and omissions insurance and fidelity bond coverage which is in full force and effect or is self-insuring with respect to such risks, which in either case, complies with the requirements of Section 3.11 hereof; and

 

(viii)        to its actual knowledge, the Servicer is not Risk Retention Affiliated with the Third Party Purchaser.

 

(b)        The representations and warranties of the Special Servicer set forth in this Section 2.6 shall survive until termination of this Agreement, and shall inure to the benefit of the parties hereto and the Certificateholders and the Companion Loan Holders.

 

2.7.        Representations and Warranties of the Depositor. (a)  The Depositor hereby represents and warrants to the other parties hereto and for the benefit of the Certificateholders that as of the Closing Date:

 

(i)           the Depositor is a Delaware limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware, with full power and authority to own its property, to carry on its business as presently conducted, to enter into and perform its obligations under this Agreement, and to create the trust pursuant hereto;

 

(ii)          the execution, delivery and performance of this Agreement by the Depositor have been duly authorized by all necessary corporate action on the part of the Depositor; neither the execution, delivery and performance of this Agreement, nor the

 

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consummation of the transactions herein contemplated, nor the compliance with the provisions hereof, will conflict with or result in a breach of, or constitute a default under (A) any of the provisions of any law, rule, regulation, judgment, decree or order binding on the Depositor, (B) the organizational documents of the Depositor, or (C) the terms of any indenture or other agreement or instrument to which the Depositor is a party or by which it is bound or any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it;

 

(iii)          the execution, delivery and performance by the Depositor of this Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;

 

(iv)        this Agreement has been duly executed and delivered by the Depositor and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Depositor enforceable against it in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);

 

(v)         there are no actions, suits or proceedings pending or, to the best of the Depositor’s knowledge, threatened or likely to be asserted against or affecting the Depositor, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Depositor will be determined adversely to the Depositor and will, if determined adversely to the Depositor, materially and adversely affect its ability to perform its obligations under this Agreement;

 

(vi)         the Depositor is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default would materially and adversely affect the ability of the Depositor to perform its obligations hereunder;

 

(vii)         other than the actions taken pursuant to this Agreement, the Depositor has taken no action to impair or encumber the title to the Trust Loan or to subject it to any offsets, defenses or counterclaims during the Depositor’s ownership thereof;

 

(viii)        the Depositor is accounting for the transfer of the Trust Loan as a sale under generally accepted accounting principles and for federal income tax purposes;

 

(ix)          the Depositor is not, and, after giving effect to the transfers contemplated under this Agreement, will not be, insolvent; and

 

(x)            the Depositor has not transferred the Trust Loan with an intent to hinder, delay or defraud its creditors.

 

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(b)           The representations and warranties of the Depositor set forth in this Section 2.7 shall survive until termination of this Agreement, and shall inure to the benefit of the Certificateholders, the Trustee, the Certificate Administrator, the Servicer and the Special Servicer.

 

(c)        Neither the Depositor nor any of its Affiliates shall insure or guarantee distributions on the Certificates.  Subject to Section 2.9(a) and (b), neither the Certificateholders, the Trustee, or the Certificate Administrator on their behalf shall have any rights or remedies against the Depositor for any losses or other claims in connection with the Certificates or the Trust Loan.

 

2.8.        Representations and Warranties of the Operating Advisor.

 

(a) The Operating Advisor hereby represents and warrants to the other parties hereto and for the benefit of the Certificateholders and the Companion Loan Holders that as of the Closing Date:

 

(i)           it is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of New York, and the Operating Advisor is in compliance with the laws of the State in which the Properties are located to the extent necessary to perform its obligations under 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 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)          the Operating Advisor possesses sufficient financial strength to fulfill its duties and responsibilities pursuant to this Agreement over the life of the Trust Fund;

 

(v)           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;

 

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(vi)         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;

 

(vii)        the Operating Advisor has errors and omissions insurance coverage that is in full force and effect or is self-insuring with respect to such risks, which in either case complies with the requirements of Section 3.11 hereof;

 

(viii)       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 the ability of the Operating Advisor to perform its obligations under this Agreement;

 

(ix)         no consent, approval, authorization or order of any court or governmental agency or body is required under federal or state law for the execution, delivery and performance by the Operating 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 can be obtained prior to the actual performance by the Operating Advisor of its obligations under this Agreement, 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

 

(x)          the Operating Advisor is an Eligible Operating Advisor.

 

(b) The representations and warranties of the Operating Advisor set forth in this Section 2.8 shall survive until termination of this Agreement, and shall inure to the benefit of the parties hereto and the Certificateholders and the Companion Loan Holders.

 

2.9.        Representations and Warranties Contained in the Trust Loan Purchase Agreement.  (a)  Upon discovery by the Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Operating Advisor of (i) a Material Breach of any representation and warranty set forth in Exhibit A to the Trust Loan Purchase Agreement, which representation and warranty was made by the Trust Loan Sellers in the Trust Loan Purchase Agreement and has been assigned to the Trustee pursuant to Section 2.1 hereof, or (ii) a Material Document Defect, such Person shall give prompt notice thereof to the other parties hereto and the Trust Loan Sellers, and upon receipt of such notice the Servicer or the Special Servicer, as applicable, shall use efforts consistent with Accepted Servicing Practices to cause the applicable Trust Loan Seller, to the extent obligated to do so under the Trust Loan Purchase Agreement, to cure such Material Document Defect or Material Breach or repurchase its Trust Loan Seller Percentage Interest in the Trust Loan under the terms of and within the time period specified by

 

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the Trust Loan Purchase Agreement, it being understood and agreed that none of such Persons has an obligation to conduct any investigation with respect to such matters; provided, that within ninety (90) days of (i) the receipt by the applicable Trust Loan Seller of notice of such Material Document Defect or Material Breach, as the case may be, or (ii) the discovery of such Material Document Defect or Material Breach by any party hereto, in the case of a Material Document Defect or Material Breach that would cause the Trust Loan not to be a “qualified mortgage” within the meaning of Code Section 860G(a)(3) (but without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2), which treats defective obligations as a qualified mortgage) (a “Qualified Mortgage”), then such Defect or breach will be a Material Breach or Material Document Defect, respectively, and with respect to any such Material Breach or Material Document Defect (the “Initial Resolution Period”), the applicable Trust Loan Seller will be required (x) to repurchase its Trust Loan Seller Percentage Interest in the Trust Loan at an amount equal to its Repurchase Price, (y) to promptly cure such Material Breach or Material Document Defect, as the case may be, in all material respects; provided, that in the case of this clause (y), any such cure that is of a monetary nature shall be made by the Trust Loan Sellers on a pro rata basis in accordance with their respective Loan Percentage Interests and any Trust Loan Seller that pays more than such pro rata share shall be entitled to contribution from the other Trust Loan Sellers or (z) if such Material Breach or Material Document Defect is not related to the Trust Loan not being a Qualified Mortgage, to indemnify the Trust for its Trust Loan Seller Percentage Interest of the losses directly related to such Material Document Defect or Material Breach (in the case of clause (z), subject, in the case of any partial repurchase or indemnity in lieu of a repurchase, to receipt of Rating Agency Confirmation from each Rating Agency with respect to such action); provided, that in the event that such Material Breach or Material Document Defect does not cause the Trust Loan to be other than a Qualified Mortgage and is capable of being cured but not within such Initial Resolution Period if the applicable Trust Loan Seller has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, such Trust Loan Seller will have an additional ninety (90) days to complete such cure (the “Extended Resolution Period”); provided, further, that with respect to such Extended Resolution Period, such Trust Loan Seller shall have delivered an officer’s certificate to the Trustee and the Servicer and the Special Servicer setting forth the reason why such Material Breach or Material Document Defect is not capable of being cured within the Initial Resolution Period and what actions such Trust Loan Seller is pursuing in connection with the cure thereof and stating that such Trust Loan Seller anticipates that such Material Breach or Material Document Defect will be cured within the Extended Resolution Period.  For the avoidance of doubt, no Liquidation Fee will be payable by any Trust Loan Seller in connection with a repurchase of its Trust Loan Seller Percentage Interest in the Trust Loan or any indemnification payment by a Trust Loan Seller to a Material Breach or a Material Document Defect if made in accordance with and within the Initial Resolution Period or any Extended Resolution Period.

 

(b)          Upon receipt by the Servicer from any Trust Loan Seller of its Trust Loan Seller Percentage Interest in the Trust Loan at the Repurchase Price for its Trust Loan Seller Percentage Interest in the Trust Loan or any indemnification payment by such Trust Loan Seller, the Servicer shall deposit such amount in the Collection Account, and (i) the Custodian shall, upon receipt of a certificate of a Servicing Officer certifying as to (1) the receipt by the Servicer of the Repurchase Price and the deposit of the Repurchase Price into the Collection Account pursuant to this Section 2.9(b) and (2) if applicable, compliance with the conditions set forth in

 

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clause (c) below, release or cause to be released to the designees of the applicable Trust Loan Seller the Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty (except that the Trust Loan is owned by the Trust and is being sold free and clear of liens and encumbrances), as shall be prepared by such designee to vest in such designee the Trust Loan (or portion thereof) released pursuant hereto and the Certificate Administrator, the Trustee, the Servicer and the Special Servicer shall have no further responsibility with regard to such Mortgage File and (ii) the Servicer or Special Servicer, as applicable, shall release or cause to be released to the applicable Trust Loan Seller any escrow payments and  reserve funds held by the Trustee, or on the Trustee’s behalf, in respect of such Trust Loan Seller Percentage Interest in the Trust Loan.

 

(c)          In the event that less than all of the Trust Notes are repurchased pursuant to the Trust Loan Purchase Agreement and at least one Trust Note remains in the Trust, the provisions of Section 3.27 of this Agreement shall govern the servicing and administration of the Mortgage Loan.

 

(d)           [Reserved]. 

 

(e)           In the event that the Trust Loan is repurchased pursuant to this Section 2.9, the Servicer or Special Servicer, as applicable, shall promptly notify the Depositor of such repurchase.

 

(f)           It is understood and agreed that the obligations of the Trust Loan Sellers referred to in this Section 2.9 shall be the sole remedies available to the Certificateholders or the Trustee respecting a Material Breach of the Trust Loan Sellers’ representations and warranties regarding the Mortgage Loan and the Property and any Material Document Defect.

 

2.10.        Execution and Delivery of Certificates; Issuance of Uncertificated Lower-Tier Interests. The Trustee acknowledges the assignment in trust by the Depositor to the Trustee of the Trust Notes and other assets comprising the Trust Fund.  Concurrently with such assignment and delivery and in exchange therefor, (i) the Certificate Administrator acknowledges the issuance of (x) the Uncertificated Lower-Tier Interests to the Depositor and (y) the Class LT-R Interest, in exchange for the Trust Loan, receipt of which is hereby acknowledged, (ii) immediately thereafter, the Certificate Administrator acknowledges (x) the assignment by the Depositor to the Trustee of the Uncertificated Lower-Tier Interests, and in exchange therefor that it (y) has executed and has authenticated and delivered to or upon the order of the Depositor, the Regular Certificates and has issued the Class UT-R Interest, and (z) has executed and has authenticated and delivered to or upon the order of the Depositor, the Class R Certificates, representing the Class LT-R and Class UT-R Interests, and (iii) the Depositor hereby acknowledges the receipt by it or its designees, of the Regular Certificates in authorized denominations and the Class UT-R Interest evidencing the entire beneficial ownership of the Upper-Tier REMIC.

 

2.11.        Miscellaneous REMIC Provisions. (a)  The Class A, Class B, Class C, Class D, Class E, Class F, Class G and Class J Certificates and the Class HRR Regular Interest are hereby designated as the “regular interests” in the Upper-Tier REMIC within the meaning of Section 860G(a)(1) of the Code, and the Class UT-R Interest, represented by the Class R

 

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Certificates, is 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 Class LA, Class LB, Class LC, Class LD-1, Class LD-2, Class LE, Class LF, Class LG, Class LJ and Class LHRR Uncertificated Interests 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 LT-R Interest, represented by the Class R Certificates, is 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.

 

2.12.       Resignation Upon Prohibited Risk Retention Affiliation. 

 

Upon the occurrence of (i) a Servicing Officer of the Servicer or a Responsible Officer of the Certificate Administrator or the Trustee, as applicable, obtaining actual knowledge that the Servicer, the Certificate Administrator or the Trustee, as applicable, is or has become a Risk Retention Affiliate of the Third Party Purchaser (an “Impermissible TPP Affiliate”), (ii) the Servicer, the Certificate Administrator, or the Trustee receiving written notice by any other party to this Agreement, the Third Party Purchaser, any Loan Sellers, or any Initial Purchaser that the Servicer, the Certificate Administrator or the Trustee, as applicable, is or has become an Impermissible TPP Affiliate, or (iii) the Operating Advisor obtaining actual knowledge that it is or has become a Risk Retention Affiliate of the Third Party Purchaser or any other party to this Agreement (an “Impermissible Operating Advisor Affiliate”; and either of an Impermissible TPP Affiliate and an Impermissible Operating Advisor Affiliate being an “Impermissible Risk Retention Affiliate”), then in each such case the Impermissible Risk Retention Affiliate shall be required to promptly notify the Retaining Sponsor and the other parties to this Agreement and resign in accordance with Section 3.30(n), Section 6.4 or Section 8.7. The resigning Impermissible Risk Retention Affiliate shall be required to bear all reasonable out-of-pocket costs and expenses of each other party to this Agreement, the Trust and each Rating Agency in connection with such resignation as and to the extent required under this Agreement; provided, however, if the affiliation causing an Impermissible Risk Retention Affiliate is the result of the Third Party Purchaser acquiring an interest in such Impermissible Risk Retention Affiliate or an affiliate of such Impermissible Risk Retention Affiliate, then such costs and expenses shall be an expense of the Trust.

 

3.           ADMINISTRATION AND SERVICING OF THE Mortgage Loan

 

3.1.        Servicer to Act as the Servicer; Special Servicer to Act as the Special Servicer. The Servicer and the Special Servicer, each as an independent contractor, shall service and administer the Mortgage Loan and administer the Foreclosed Property solely on behalf of the Trust and the Companion Loan Holders, in the best interest of, and for the benefit of, all the Certificateholders and the Companion Loan Holders as a collective whole as if they constituted one lender (taking into account the relative subordination of the Notes) (as determined by the Servicer or the Special Servicer, as applicable, in the exercise of its good faith and reasonable judgment), in accordance with applicable law (including the REMIC Provisions), the terms of this Agreement, the Mortgage Loan Documents, the Mezzanine Intercreditor Agreement, the Co-Lender Agreement and, to the extent consistent with the foregoing, the following standards:  (i) the higher of (a) the same manner in which and with the same care, skill, prudence and

 

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diligence with which the Servicer or the Special Servicer, as applicable, services and administers similar loans and administers foreclosed properties for other third-party portfolios, giving due consideration to customary and usual standards of practice of prudent institutional commercial mortgage lenders in servicing their own loans and administering their own foreclosed properties, or (b) with the care, skill, prudence and diligence the Servicer or the Special Servicer, as applicable, uses for loans which it owns or for foreclosed properties it owns and administers; (ii) with a view to the timely collection of (a) all scheduled payments of principal and interest under the Mortgage Loan or, if the Mortgage Loan comes into and continues in default and if no satisfactory arrangements can be made for the collection of the delinquent payments, the maximization of the recovery on the Mortgage Loan to the Certificateholders and the Companion Loan Holders as a collective whole as if they constituted one lender (taking into consideration the relative subordination of the Notes) on a net present value basis and (b) the payment of Trust Fund Expenses that are reimbursable or payable by the Borrower under the Mortgage Loan Agreement and (iii) without regard to:

 

(A)         any relationship that the Servicer or the Special Servicer or any Affiliate thereof may have with any Borrower Related Party, any Mezzanine Lender, any Trust Loan Seller, any Companion Loan Holder, the Depositor or any of their respective Affiliates;

 

(B)         the ownership of any Certificate or any Companion Loan or any interest in any Companion Loan by the Servicer or the Special Servicer or by any Affiliate thereof;

 

(C)          in the case of the Servicer, its obligation to make Advances;

 

(D)        the right of the Servicer or the Special Servicer or any Affiliate thereof to receive reimbursement of costs, compensation or other fees (other than Advances), or the sufficiency of any compensation payable to it under this Agreement or with respect to any particular transaction; or

 

(E)          the ownership, servicing or management for others of any other loans or property by the Servicer or the Special Servicer.

 

Subject to the above-described servicing standards (hereinafter referred to as “Accepted Servicing Practices”) and the terms of this Agreement and of the Mortgage Loan Documents, the Servicer and the Special Servicer each shall have full power and authority, acting alone and/or through (in the case of the Servicer) one or more sub-servicers as provided in Section 3.2, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable.  The Servicer and the Special Servicer shall service and administer the Mortgage Loan in accordance with applicable state and federal law.  At the written request of the Servicer or the Special Servicer, as applicable, accompanied by the form of power of attorney or other documents being requested, the Trustee shall furnish to the Servicer or the Special Servicer any powers of attorney and other documents necessary or appropriate to enable such Servicer or the Special Servicer to carry out its servicing and administrative duties hereunder, and the Trustee shall not be held responsible (and shall be indemnified by the Servicer or the Special Servicer) for any negligence or misuse by the Servicer

 

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or the Special Servicer in its uses of any such powers of attorney or other document.  Notwithstanding anything contained herein to the contrary, the Servicer and the Special Servicer shall not without the Trustee’s and the Certificate Administrator’s prior written consent:  (i) initiate any action, suit or proceeding solely under the Trustee’s or the Certificate Administrator’s name without indicating the representative capacity of the Servicer or the Special Servicer, as applicable, or (ii) take any action with the intent to, and which actually does cause, the Trustee or the Certificate Administrator to be registered to do business in any state.

 

The liability of each of the Servicer and the Special Servicer, as applicable, for actions and omissions in its capacity as Servicer and the Special Servicer, respectively, hereunder is limited as provided herein (including, without limitation, pursuant to Section 6.3).  Nothing contained in this Agreement shall be construed as an express or implied guarantee by the Servicer or the Special Servicer of the collectibility of the Trust Loan and the Companion Loans. In connection with any ground lease, the Servicer shall promptly, and in any event within 60 days following the later of receipt of the applicable ground lease and the Closing Date, notify the related ground lessor of the transfer of the Trust Loan to the Trust Fund pursuant to this Agreement and inform such ground lessor that any notices of default under such ground lease should thereafter be forwarded to the Servicer.

 

Except as otherwise expressly set forth in this Agreement, KeyBank National Association, acting in any particular capacity hereunder will not be deemed to be imputed with knowledge of (a) KeyBank National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or (b) KeyBank National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of KeyBank National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers; provided, however, the knowledge of employees performing solely special servicing functions shall not be imputed to employees performing solely master servicing functions, and the knowledge of employees performing solely master servicing functions shall not be imputed to employees performing solely special servicing functions.

 

3.2.          Sub-Servicing Agreements. (a)  The Special Servicer shall not engage any Sub-Servicer or enter into any sub-servicing agreement.  The Servicer, at its own expense without a right of reimbursement under this Agreement or otherwise, may enter into sub-servicing agreements with sub-servicers for the servicing and administration of the Trust Loan and the Companion Loans, provided that (i) any such sub-servicing agreement shall be upon such terms and conditions as are not inconsistent with this Agreement and as the Servicer and the sub-servicer have agreed, and (ii) no sub-servicer retained by the Servicer shall grant any modification, waiver, or amendment to the Mortgage Loan Documents without the approval of the Servicer.  References in this Agreement to actions taken or to be taken, and limitations on actions permitted to be taken, by the Servicer in servicing the Mortgage Loan include actions taken or to be taken by a sub-servicer on behalf of the Servicer.  Each sub-servicer shall be (i) authorized to transact business and licensed in the applicable state(s), if, and to the extent, required by applicable law to enable the sub-servicer to perform its obligations under the applicable sub-servicing agreement, and (ii) qualified to perform its obligations under the applicable sub-servicing agreement.  For purposes of this Agreement, the Servicer shall be

 

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deemed to have received any amount when the sub-servicer receives such amount, irrespective of whether such amount is remitted to the Servicer for deposit in the Collection Account, any Cash Management Account, any Reserve Account or the Distribution Account, and actions taken by the sub-servicer shall be deemed to be actions of the Servicer.  The Servicer shall notify the Trustee, the Certificate Administrator, the Operating Advisor and the Depositor in writing promptly upon the appointment of any sub-servicer and promptly furnish the Trustee, upon its request, with a copy of the sub-servicing agreement.  No sub-servicer shall be permitted to enter into any sub-servicing agreement with other sub-servicers without the prior written consent of the Servicer.

 

(b)          Notwithstanding any sub-servicing agreement, the Servicer shall remain obligated and liable to the Trustee, the Certificateholders for the servicing and administering of the Trust Loan and the Companion Loans in accordance with the provisions of Section 3.1 without diminution of such obligation or liability by virtue of such sub-servicing agreement, or by virtue of indemnification from a sub-servicer, and to the same extent and under the same terms and conditions as if the Servicer alone were servicing and administering the Mortgage Loan.

 

(c)           Any sub-servicing agreement entered into by the Servicer shall provide that it may be assumed or terminated by (i) the Trustee if the Trustee has assumed the duties of the Servicer or if the Servicer is otherwise terminated pursuant to the terms of this Agreement, or (ii) a successor Servicer if such successor Servicer has assumed the duties of the Servicer, without cost or obligation to the Trustee, the successor Servicer, the Trust or the Trust Fund.

 

(d)           Any sub-servicing agreement, and any other transactions or services relating to the Mortgage Loan involving a sub-servicer, shall be deemed to be between the Servicer and such sub-servicer alone, and the Trustee, the Certificate Administrator, the Depositor, the Trust and the Certificateholders shall not be deemed parties thereto and shall have no claims, rights, obligations, duties or liabilities with respect to the sub-servicer, and no provision herein shall be construed so as to require the Trust, the Trustee, the Certificate Administrator, the Special Servicer or the Depositor to indemnify any such sub-servicer.  Notwithstanding anything in this Agreement to the contrary, the Servicer and the Special Servicer are permitted, at their own expense, or to the extent that a particular expense is provided herein to be an Advance or a Trust Fund Expense, at the expense of the Trust, to utilize agents or attorneys typically used by servicers of mortgage loans underlying commercial mortgage-backed securities in performing each of their obligations under this Agreement (including but not limited to inspectors, appraisers, engineers and property managers).

 

(e)           Notwithstanding anything herein, each of the initial Servicer and the initial Special Servicer may delegate certain of its duties and obligations hereunder to an Affiliate of the Servicer or Special Servicer, as applicable.  Such delegation shall not be considered a sub-servicing agreement hereunder, and the requirements and obligations set forth herein applicable to sub-servicing agreements, sub-servicers or Servicing Function Participants shall not be applicable to such arrangement.  Notwithstanding any such delegation, the Servicer and the Special Servicer shall remain obligated and liable for the performance of their respective obligations and duties under this Agreement in accordance with the provisions hereof

 

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to the same extent and under the same terms and conditions as if each alone were servicing and administering the Mortgage Loan as required hereby.

 

(f)           The parties hereto acknowledge that the Mortgage Loan is subject to the terms and conditions of the Co-Lender Agreement and recognize the respective rights and obligations of the Trust, as holder of the Trust Loan, and of the Companion Loan Holders under the Co-Lender Agreement, including:  (i) with respect to the allocation of collections on or in respect of the Mortgage Loan, and the making of remittances, to the Trust, as holder of the Trust Loan, and to the Companion Loan Holders; (ii) with respect to the allocation of expenses and losses relating to the Mortgage Loan to the Trust, as holder of the Trust Loan, and to the Companion Loan Holders and (iii) to the extent provided for under the Co-Lender Agreement, the consultation rights of the Companion Loan Holders.  With respect to the Mortgage Loan, the Servicer (if the Mortgage Loan is not a Specially Serviced Mortgage Loan) or the Special Servicer (if the Mortgage Loan has become a Specially Serviced Mortgage Loan or the Property has been converted to an Foreclosed Property) shall prepare and provide to each Companion Loan Holder all notices, reports, statements and communications to be delivered by the holder of the Trust Loan under the Co-Lender Agreement, and shall perform all duties and obligations to be performed by a servicer and perform all servicing related duties and obligations to be performed by the holder of the Trust Loan pursuant to the Co-Lender Agreement.  In the event of any conflict between this Agreement and the Co-Lender Agreement, the terms of the Co-Lender Agreement shall control with respect to the Mortgage Loan.

 

(g)           Notwithstanding anything to the contrary herein, at no time shall the Servicer or the Trustee be required to make any advance of delinquent scheduled monthly payments of principal or interest with respect to any Companion Loan other than the C Notes or any Administrative Advance with respect to any Companion Loan.

 

(h)          To the extent required under the Mortgage Loan Documents or the Co-Lender Agreement, the Servicer shall, on behalf of the Lender, maintain a Notes register for the Mortgage Loan.

 

3.3.         Cash Management Account. A Cash Management Account has been established pursuant to the terms of the Mortgage Loan Agreement and the Cash Management Agreement.  The Servicer shall exercise and enforce the rights of the Trust Fund with respect to the Cash Management Account and Lockbox Account under the Mortgage Loan Agreement and the Cash Management Agreement in accordance with Accepted Servicing Practices and the other terms of this Agreement and the other Mortgage Loan Documents.

 

3.4.          Collection Account, Companion Loan Distribution Account and Interest Reserve Account. (a)  The Servicer shall establish and maintain (i) in the name of “KeyBank National Association, as Servicer, on behalf of Xxxxx Fargo Bank, National Association, as Trustee, for the benefit of the holders of MRCD 2019-PARK Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2019-PARK, Collection Account” one or more deposit accounts on behalf of the Trustee for the benefit of the Certificateholders and (ii) in the name of “KeyBank National Association, as Servicer, on behalf of Xxxxx Fargo Bank, National Association, as Trustee, for the benefit of the Companion Loan Holders with respect to MRCD 2019-PARK Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2019-

 

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PARK, Companion Loan Distribution Account“ one deposit account for the benefit of the Companion Loan Holders (the “Companion Loan Distribution Account”), which may be a subaccount of the Collection Account, and funds in such account shall be remitted to the Companion Loan Holders (collectively, the “Collection Account”).  The Collection Account must be an Eligible Account maintained with an Eligible Institution.  The Servicer shall deposit into the Collection Account within two (2) Business Days of receipt of properly identified payments and collections in respect of the Mortgage Loan the following amounts representing payments and collections received or made during each Collection Period on or with respect to the Mortgage Loan:

 

(i)            all payments on account of principal on the Mortgage Loan;

 

(ii)           all payments on account of interest on the Mortgage Loan, including Default Interest and Yield Maintenance Premiums;

 

(iii)         any amount representing reimbursements by the Borrower of Advances, interest thereon, and any other expenses of the Depositor, the Trustee, the Certificate Administrator, the Servicer or the Special Servicer, as applicable, as required by the Mortgage Loan Documents or hereunder;

 

(iv)        any other amounts payable for the benefit of the Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Certificateholders under the Mortgage Loan;

 

(v)          any amounts required to be deposited pursuant to Section 3.8(b) in connection with net losses realized on Permitted Investments with respect to funds held in the Collection Account;

 

(vi)         all Net Foreclosure Proceeds received from the Special Servicer pursuant to Section 3.14, all Net Liquidation Proceeds, Insurance Proceeds and Condemnation Proceeds; and

 

(vii)         any other amounts required by the provisions of this Agreement to be deposited into the Collection Account by the Servicer, including, without limitation, any (1) proceeds of any repurchase of the Trust Loan (or any Trust Loan Seller Percentage Interest therein) pursuant to Section 2.7(b) hereof and the Trust Loan Purchase Agreement, (2) proceeds of the sale of the Mortgage Loan by the Special Servicer pursuant to Section 3.16 hereof, (3) amounts from a Mezzanine Lender representing proceeds of a purchase of the Mortgage Loan or (4) amounts payable under the Mortgage Loan Documents by any Person to the extent not specifically excluded.

 

The foregoing requirements for deposits in the Collection Account by the Servicer shall be exclusive, it being understood and agreed that, without limiting the generality of the foregoing, payments (if any) in the nature of Additional Compensation (other than Default Interest and late payment charges) to which the Servicer or Special Servicer, as applicable are entitled pursuant to Section 3.17 and any reimbursement made by the Borrower of expenses of the Servicer or the Special Servicer need not be deposited in the Collection Account by the Servicer or Special Servicer and, to the extent permitted by applicable law, the Servicer or the

 

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Special Servicer, as applicable, shall be entitled to retain any such fees and expense reimbursements received with respect to the Mortgage Loan.

 

In the event the Threshold Cure Holder delivers Threshold Event Collateral in the form of an unconditional and irrevocable standby letter of credit, the Servicer shall hold such letter of credit and any proceeds thereof as additional collateral in the Threshold Event Cash Collateral Account. Upon the Special Servicer’s determination of a Final Recovery Determination, the Special Servicer shall notify the Servicer and the Servicer shall deposit any amounts in the Threshold Event Cash Collateral Account directly into the Collection Account. Proceeds from Threshold Event Collateral in the form of an unconditional and irrevocable standby letter of credit shall be distributed in accordance with the provisions of Section 3.5.

 

(b)           Funds in the Collection Account may be invested in Permitted Investments in accordance with the provisions of Section 3.8.  The Servicer shall on the Closing Date give written notice to the Certificate Administrator (with a copy to the Borrower) of the location and account number of the Collection Account and shall notify the Certificate Administrator in writing (with a copy to the Borrower) prior to any subsequent change thereof.

 

(c)           On or prior to each Remittance Date, (or following the securitization of any Companion Loan, in the case of clause (xii) below, the earlier of (1) the Remittance Date or (2) the second Business Day after the Payment Date), prior to the remittance of funds to the Certificate Administrator for deposit in the Distribution Account pursuant to Section 3.5, the Servicer shall make withdrawals from the Collection Account (which withdrawals shall be the only permitted withdrawals from the Collection Account by the Servicer) as described below (the order set forth below constituting an order of priority for such withdrawals):

 

(i)            to withdraw funds deposited therein in error;

 

(ii)          to reimburse the Trustee (and the trustee with respect to each Other Securitization Trust) and the Servicer (and the master servicer with respect to each Other Securitization Trust), in that order, out of general collections on the Mortgage Loan for any Nonrecoverable Advances made by each and not previously reimbursed pursuant to clause (vi)(A) below together with unpaid interest thereon at the Advance Rate as follows: (A) first, to reimburse Nonrecoverable Advances that are Property Protection Advances and Administrative Advances relating to the Mortgage Loan and the Property and interest thereon; (B) second, to first reimburse Nonrecoverable Advances that are Monthly Payment Advances or Companion Loan Advances on the A Notes and interest thereon, on a pro rata and pari passu basis, then to reimburse Nonrecoverable Advances that are Monthly Payment Advances on the B Notes and interest thereon, on a pro rata and pari passu basis, then to reimburse Nonrecoverable Advances that are Monthly Payment Advances on the C Notes and interest thereon, on a pro rata and pari passu basis; and (C) third, to reimburse the master servicer with respect to each Other Securitization Trust for its pro rata share of Nonrecoverable Advances previously paid from general collections on the related Other Securitization Trust;

 

(iii)         concurrently, to pay the Servicing Fee to the Servicer, and to pay the Certificate Administrator Fee (including the portion that is the Trustee Fee) to the

 

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Certificate Administrator (and to pay the Operating Advisor Fee to the Operating Advisor);

 

(iv)          to pay to the Operating Advisor the Operating Advisor Consulting Fee (but only to the extent actually received from the Borrower);

 

(v)          to pay (a) to the Servicer, as additional compensation, any income earned (net of losses (subject to Section 3.8(b)) on the investment of funds deposited in the Collection Account; and (b) the Special Servicing Fee, if any, the Work-out Fee, if any, and the Liquidation Fee, if any, to the Special Servicer (with respect to clauses (a) and (b), in that order);

 

(vi)         to reimburse the Trustee (and the trustee with respect to each Other Securitization Trust) and the Servicer (and the master servicer with respect to each Other Securitization Trust), in that order, for (A) Advances made by each and not previously reimbursed from late payments received during the applicable period on the Mortgage Loan, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and other collections on the Mortgage Loan; provided that any Advance which has been determined to be a Nonrecoverable Advance shall be reimbursed pursuant to clause (ii) above and (B) unpaid interest on such Advances at the Advance Rate; provided, however, that, with respect to Advances that are not deemed to be Nonrecoverable Advances, prior to (x) final liquidation of the Property or (y) the final payment and release of the Mortgage, interest on such Advances shall only be paid out of Default Interest or late payment charges collected in the related Collection Period and after (A) final liquidation of the Property or (B) the final payment and release of the Mortgage, interest on such Advances may be paid out of other amounts on deposit in the Collection Account to the extent Default Interest and late payment charges are not sufficient to pay for such interest on Advances;

 

(vii)         to reimburse the Trustee, the Certificate Administrator, the Servicer and the Special Servicer, in that order, for expenses incurred by them in connection with the liquidation of the Specially Serviced Mortgage Loan or the Liquidated Property, and not otherwise covered and paid by an insurance policy or deducted from the proceeds of liquidation or not previously reimbursed pursuant to clauses (ii) or (vi) above;

 

(viii)        to pay to the Servicer or the Special Servicer, as applicable, as additional compensation, (A) to the extent actually received from the Borrower (and permitted by (or not otherwise prohibited by) and allocated as such pursuant to the terms of the Mortgage Loan Documents or this Agreement) and deposited into the Collection Account by the Servicer, any payments in the nature of any late payment fees and Default Interest (to the extent remaining after payment or reimbursement of any Special Servicing Fees, Liquidation Fees or Work-out Fees pursuant to clause (iv) above and reimbursement of Advances and interest on Advances pursuant to clause (v) above), release fees, defeasance fees, Assumption Fees, Assumption Application Fees, substitution fees, Net Modification Fees, consent fees, loan service transaction fees, amounts collected for checks returned for insufficient funds, charges for beneficiary statements or demands, review fees, processing fees and similar fees and expenses; and (B) any income earned on

 

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the investment of funds deposited in the Collection Account and the Foreclosed Property Account; provided that such amounts received during each Collection Period shall not be required to be deposited into the Collection Account and shall be deemed to have been deposited in the Collection Account and withdrawn pursuant to this clause (vii) solely for the purpose of determining the Available Funds Reduction Amount in connection with the calculation of the Available Funds for the related Distribution Date;

 

(ix)          to pay or reimburse the Depositor, the Trustee, the Certificate Administrator, the Servicer, the Special Servicer and the Operating Advisor in that order, for any indemnities, expenses and other amounts (including any Trust Fund Expenses) then due and payable or reimbursable to each pursuant to the terms of this Agreement and not previously paid or reimbursed pursuant to the preceding clauses;

 

(x)            to the extent not previously paid or advanced, to remit to the Certificate Administrator to pay (or set aside for eventual payment) any and all taxes imposed on the Trust or the Trust Fund by federal or state governmental authorities, including without limitation amounts paid pursuant to Section 12.1(k); provided, that, if such taxes are the result of the Depositor’s, Servicer’s, Special Servicer’s, the Operating Advisor’s, Certificate Administrator’s or Trustee’s, as applicable, negligence, bad faith or willful misconduct in performing its obligations hereunder, such amounts may not be withdrawn from the Collection Account, but shall be paid by such party that was negligent, acted in bad faith or engaged in willful misconduct pursuant to Sections 6.6 and 8.12, as applicable;

 

(xi)         to pay CREFC® the CREFC® Intellectual Property Royalty License Fee (according to the payment instructions set forth on Exhibit R hereto or such other payment instructions as CREFC® may provide from time to time in writing at least two Business Days prior to the Remittance Date); and

 

(xii)        to pay the Companion Loan Holders any portion of such collections that are required to be distributed to the Companion Loan Holders in respect of the Companion Loans pursuant to the terms of the Co-Lender Agreement;

 

provided that in no event shall the Servicer be permitted to apply any portion of collections that are required to be distributed to the Companion Loan Holders in respect of the Companion Loans pursuant to the terms of the Co-Lender Agreement to pay or reimburse any CREFC® Intellectual Property Royalty License Fee, the Operating Advisor Fee, the Certificate Administrator Fee, any Monthly Payment Advance on the Trust Loan or the C Notes (or interest accrued and payable on such Monthly Payment Advance) or any Trust Fund Expenses that are not related to the servicing and administration of the Mortgage Loan or the Property.

 

Notwithstanding the foregoing, with respect to any Remittance Date, in no event shall the Servicer be permitted to make a withdrawal pursuant to clauses 3.4(c)(iii), (v)(b), (vi), (vii), (ix) or (xi) above if, as a result of such withdrawal, the amount on deposit in the Collection Account after giving effect to such withdrawal would be less than the Required Advance Amount; provided that the Servicer shall be permitted to make withdrawals in the order of

 

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priority specified above up to the amount on deposit in the Collection Account that would result in funds equaling or exceeding the Required Advance Amount remaining in the Collection Account.  Notwithstanding the foregoing, such withdrawal limitations shall not apply (and accrued amounts previously eligible for withdrawal pursuant to clauses 3.4(c)(iii), (v)(b), (vi), (vii), (ix) or (xi) but which remain unpaid due to the operation of this paragraph may then be withdrawn and paid) upon (1) the final liquidation of the Mortgage Loan or the Property, (2) the final payment of the Mortgage Loan and release of the Mortgage or (3) the determination that any Advance that would increase the currently unreimbursed Advances in the aggregate such that it would be a Nonrecoverable Advance. 

 

The Servicer shall pay to the Certificate Administrator (on behalf of itself and the Trustee) and advance or pay to the Special Servicer or the Operating Advisor, if applicable, from the Collection Account, as provided above, amounts permitted to be paid to the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee therefrom, promptly upon receipt of certificates of a Responsible Officer of the Certificate Administrator or the Trustee or an officer of the Special Servicer or the Operating Advisor describing the item and amount to which the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, as the case may be, are entitled unless such payment to the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee, as the case may be, is clearly required pursuant to this Agreement, in which case a written certificate shall not be required.  The Servicer may rely conclusively on any such certificate, shall have no duty to recalculate the amounts stated therein and shall have no liability if the amount paid in reliance thereon is an amount to which the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee, as applicable, is not entitled. 

 

(d)          The Servicer shall withdraw from the Collection Account and, to the extent sufficient funds are on deposit therein, pay the CREFC® Intellectual Property Royalty License Fee to CREFC® in accordance with Section 3.4(c)(xi) on a monthly basis, solely from funds on deposit in the Collection Account.

 

(e)         If the Mortgage Loan accrues interest on an actual/360 basis, the Certificate Administrator shall establish and maintain a reserve account (which may be a subaccount of the Distribution Account) (the “Interest Reserve Account”) for the benefit of the Trustee and for the benefit of the Certificateholders. The Interest Reserve Account must be an Eligible Account maintained with an Eligible Institution.  Funds on deposit in the Interest Reserve Account shall be uninvested.  On each Distribution Date occurring in any February and on any Distribution Date occurring in any January which occurs in a year that is not a leap year (unless, in either case, such Distribution Date is the final Distribution Date), the Certificate Administrator shall deposit into the Interest Reserve Account an amount equal to one day’s net interest collected on the principal balance of each Trust A Note and the Components as of the Payment Date occurring in the month preceding the month in which such Distribution Date occurs at the applicable Trust Note Rate or Component Rate (net of interest at the Servicing Fee Rate applicable to the Trust Loan, the Certificate Administrator Fee Rate (including the portion that is the Trustee Fee Rate), the Operating Advisor Fee Rate and the CREFC® Intellectual Property Royalty License Fee Rate and exclusive of Default Interest allocable to the Trust Loan payable therefrom) to the extent a full Monthly Payment or Monthly Payment Advance is made in respect thereof (all amounts so deposited in any consecutive January and February, “Withheld

 

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Amounts”).  On each Remittance Date occurring in March (or February, if the related Distribution Date is the final Distribution Date), the Certificate Administrator shall withdraw from the Interest Reserve Account an amount equal to the Withheld Amounts from the preceding January and February, if any, and transfer such amounts into the Distribution Account.

 

3.5.        Distribution Account. (a)  The Certificate Administrator shall establish and maintain in the name of “Xxxxx Fargo Bank, National Association”, as Certificate Administrator, on behalf of “Xxxxx Fargo Bank, National Association”, as the Trustee, and for the benefit of the holders of MRCD 2019-PARK Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2019-PARK, a deposit account (the “Distribution Account”), which shall be deemed to include the Lower-Tier Distribution Account and the Upper-Tier Distribution Account, which shall be subaccounts of the Distribution Account for the benefit of the Certificateholders and the Trustee, as holder of the Uncertificated Lower-Tier Interests.  The Distribution Account must be an Eligible Account maintained with an Eligible Institution.  On each Remittance Date, the Servicer shall transfer from the Collection Account to the Certificate Administrator for deposit into the Distribution Account all funds remaining on deposit therein, after giving effect to the withdrawals made pursuant to Section 3.4(c).  The Certificate Administrator shall credit the funds remitted by the Servicer from the Collection Account to the Distribution Account.

 

Amounts held in the Distribution Account and the Interest Reserve Account shall not be invested.

 

The Certificate Administrator shall make withdrawals from the Distribution Account to withdraw any amounts deposited in error, to withdraw amounts due to it under Section 3.4(c), to the extent such amounts were not withdrawn and paid to it by the Servicer under Section 3.4(c), and then to make distributions to the Holders of the Certificates pursuant to Section 4.1.

 

In the event the Threshold Cure Holder delivers Threshold Event Collateral in the form of cash collateral, the Servicer shall establish and maintain on behalf of the Trust and for the benefit of the Certificateholders a segregated non-interest bearing trust account (the “Threshold Event Cash Collateral Account”) and deposit the Threshold Event Collateral into such account. In addition, any proceeds from a letter of credit delivered as Threshold Event Collateral shall also be deposited into the Threshold Event Cash Collateral Account. The Threshold Event Cash Collateral Account must be an Eligible Account. Upon the Special Servicer’s determination of a Final Recovery Determination, the Special Servicer shall notify the Servicer and the Servicer shall deposit any amounts in the Threshold Event Cash Collateral Account directly into the Collection Account.

 

Upon such deposit, the Servicer shall transfer the lesser of (i) all Threshold Event Collateral or (ii) an amount sufficient to pay all amounts due on the Certificates that were not sufficiently covered by the net sale proceeds or net liquidation amounts, including Realized Losses, to the Distribution Account to reimburse Certificateholders for all Realized Losses after application of all Net Liquidation Proceeds plus accrued and unpaid interest and all other Trust Fund Expenses pursuant to Section 4.1. For the avoidance of doubt, any remaining funds will be distributed to the Threshold Cure Holder.

 

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The Special Servicer shall cooperate with the Servicer and provide any information reasonably requested by the Servicer relating to the Threshold Event Cure.

 

(b)          The Certificate Administrator shall make or be deemed to have made withdrawals from the Lower-Tier Distribution Account in the following order of priority and only for the following purposes:

 

(i)          to make deposits of the Lower-Tier Distribution Amount pursuant to Section 4.1(b) and Section 4.3(b) into the Upper-Tier Distribution Account and to make distributions to the Holder of the Class R Certificates (in respect of the Class LT-R Interest) pursuant to Section 4.1(b);

 

(ii)          to withdraw amounts deposited in error and pay such amounts to the Persons entitled thereto and to withdraw amounts due to it and the Trustee under Section 3.4(c), to the extent such amounts were not withdrawn and paid to it by the Servicer under Section 3.4(c); and

 

(iii)          to clear and terminate the Lower-Tier Distribution Account pursuant to Section 10.1.

 

(c)          The Certificate Administrator shall make withdrawals from the Upper-Tier Distribution Account in the following order of priority and only for the following purposes:

 

(i)           to withdraw amounts deposited in error and to withdraw amounts due to it and the Trustee under Section 3.4(c), to the extent such amounts were not withdrawn and paid to it by the Servicer under Section 3.4(c);

 

(ii)          to make distributions to Holders of the Regular Certificates and the Class R Certificates (in respect of the Class UT-R Interest) on each Distribution Date pursuant to Section 4.1 or Section 10.2 as applicable; and

 

(iii)         to clear and terminate the Upper-Tier Distribution Account at the termination of this Agreement pursuant to Section 10.1.

 

3.6.         Foreclosed Property Account. The Special Servicer shall establish and maintain one or more deposit accounts (the “Foreclosed Property Account”) in the name of either (a) “KeyBank, as Special Servicer, on behalf of Xxxxx Fargo Bank, National Association, as Trustee, for the benefit of the holders of MRCD 2019-PARK Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2019-PARK and the Companion Loan Holders, Foreclosed Property Account” or (b) in the name of the limited liability company formed under Section 3.14 related to the Foreclosed Property, if any, held in the name of the Special Servicer on behalf of the Trustee for the benefit of the Certificateholders and the Companion Loan Holders.  The Foreclosed Property Account must be an Eligible Account maintained with an Eligible Institution.  The Special Servicer shall deposit into the Foreclosed Property Account within two (2) Business Days of receipt all funds collected and received in connection with the operation or ownership of the Foreclosed Property.  On or before the last day of each Collection Period, the Special Servicer shall withdraw the funds in the Foreclosed Property Account, net of certain expenses and/or reserves (the amount of such expenses and/or reserves as determined in

 

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the Special Servicer’s reasonable discretion), and deposit them into the Collection Account in accordance with Section 3.4(a).  The Special Servicer shall notify the Certificate Administrator in writing of the location and account number of the Foreclosed Property Account and shall notify the Certificate Administrator in writing prior to any subsequent change thereof.

 

3.7.         Appraisal Reductions. 

 

(a)          Within 60 days after the occurrence of an Appraisal Reduction Event with respect to the Mortgage Loan, the Special Servicer shall (i) notify the Servicer, the Operating Advisor, the Trustee and the Certificate Administrator and any certificate administrator and trustee associated with any Other Securitization Trust and, so long as no Consultation Termination Event has occurred, the Directing Holder, of such occurrence of an Appraisal Reduction Event, (ii) order (which order shall be placed within 30 days of the occurrence of the Appraisal Reduction Event) and use efforts consistent with Accepted Servicing Practices to obtain an Appraisal of the Property owned by the Borrower unless an Appraisal was performed within nine months prior to the Appraisal Reduction Event and the Special Servicer is not aware of any material change in the market or condition or value of the Property since the date of such Appraisal, in which case such Appraisal with respect to the Property shall be used by the Special Servicer, (iii) determine on the basis of the applicable Appraisal, and receipt of information reasonably requested by the Special Servicer from the Servicer necessary to calculate the Appraisal Reduction Amount whether there exists any Appraisal Reduction Amount and (iv) allocate the Appraisal Reduction Amount to the Trust Loan and the Companion Loans and give reasonably prompt notice of such Appraisal Reduction Amount, the Trust Appraisal Reduction Amount and the portion of the Appraisal Reduction Amount allocated to the Companion Loans to the Companion Loan Holder (or, in the case of a Companion Loan that is part of an Other Securitization Trust, the master servicer, special servicer and trustee with respect to such Other Securitization Trust), the Trustee, the Operating Advisor and the Certificate Administrator (to the extent not already reported to such parties on the CREFC® Reports provided by the Servicer and posted on the Certificate Administrator’s website). The cost of obtaining such Appraisal shall be paid by the Servicer as a Property Protection Advance or an Administrative Advance unless it would constitute a Nonrecoverable Advance and in such case, as a Trust Fund Expense.  Updates of such Appraisals shall be obtained by the Special Servicer, and paid for by the Servicer as a Property Protection Advance or an Administrative Advance (or paid for by the Trust if the Servicer determines that such Advance would constitute a Nonrecoverable Advance) every nine (9) months for so long as an Appraisal Reduction Event exists, and the Appraisal Reduction Amount shall be adjusted accordingly.  If required in accordance with any such adjustment, each Class of Certificates that has been notionally reduced as a result of the Trust Appraisal Reduction Amount shall have its related Certificate Balance notionally restored by the Certificate Administrator or the Trustee to the extent required by such adjustment of the Trust Appraisal Reduction Amount, and there shall be a redetermination of whether a Control Termination Event has occurred.  Any such Appraisal obtained under this Section shall be delivered by the Special Servicer to the Trustee, the Certificate Administrator and the Operating Advisor, and, so long as no Consultation Termination Event has occurred, the Directing Holder, in electronic format, and the Certificate Administrator shall make such Appraisal available to Privileged Persons pursuant to Section 8.14(b).  The Servicer shall provide (via electronic delivery) the Special Servicer with information in its possession that is reasonably required to calculate or recalculate any Appraisal Reduction Amount pursuant to the definition thereof, using reasonable efforts to deliver such

 

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information within four (4) Business Days of the Special Servicer’s written request (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 or preparation of the applicable internal valuation) provided, however, that the Special Servicer’s failure to timely make such a request shall not relieve the Servicer of its obligation to provide such information to the Special Servicer in the manner and timing set forth in this sentence.  Accordingly, the Special Servicer shall not be obligated to calculate, recalculate, determine or redetermine any Appraisal Reduction Amount until such time as it receives from the Servicer the information reasonably required by the Special Servicer to make such calculation, recalculation, determination or redetermination.  The Servicer shall not calculate Appraisal Reduction Amounts.

 

(b)          While any Trust Appraisal Reduction Amount (or deemed Trust Appraisal Reduction Amount pursuant to Section 3.7(e)) exists with respect to the Mortgage Loan, (i) the amount of any Monthly Payment Advances shall be reduced as provided in Section 3.23(a), and (ii) the existence thereof (other than any deemed Trust Appraisal Reduction Amount) will be taken into account for purposes of determining the Voting Rights of certain Classes of Certificates as provided in Section 3.7(c) and (iii) except with respect to any deemed Appraisal Reduction Amount, there shall be a determination of whether a Control Termination Event has occurred and is continuing.

 

(c)           The Certificate Balance of each Class of Sequential Pay Certificates shall be notionally reduced solely for purposes of determining (x) the Voting Rights of the related Classes to the extent set forth in this Agreement and (y) whether a Control Termination Event has occurred and is continuing or a Consultation Termination Event has occurred to the extent of any Trust Appraisal Reduction Amount (other than any deemed Trust Appraisal Reduction Amount) allocated to such Class on such Distribution Date.  The Appraisal Reduction Amount for any Distribution Date shall be applied to notionally reduce the Certificate Balances of the Sequential Pay Certificates in the following order of priority:  first, to the Class HRR Certificates, second, to the Class J Certificates, third, to the Class G Certificates, fourth, to the Class F Certificates, fifth, to the Class E Certificates, sixth, to the Class D Certificates, seventh, to the Class C Certificates, eighth, to the Class B Certificates and ninth, to the Class A Certificates. 

 

(d)           In the event that a portion of one or more Monthly Payment Advances with respect to the Trust Loan is reduced as a result of an Appraisal Reduction Event, the amount of the Net Liquidation Proceeds to be applied to interest on the Trust Loan shall be reduced by the aggregate amount of such reductions and the portion of such Net Liquidation Proceeds to be applied to principal of the Trust Loan shall be increased by such amount, and if the amounts of the Net Liquidation Proceeds to be applied to principal of the Trust Loan have been applied to pay the principal of the Trust Loan in full, any remaining Net Liquidation Proceeds shall then be applied to pay any remaining accrued and unpaid interest on the Trust Loan in accordance with Section 1.3.  With respect to the Trust Loan, such reductions will be applied, first to Component B-HRR, second to Component B-A and third to the Trust A Notes, in each case until their respective principal balances have been reduced to zero.

 

(e)            If (i) an Appraisal Reduction Event has occurred, (ii) either (A) no Appraisals or updates of any Appraisals have been obtained or conducted with respect to the Property or Foreclosed Property, as the case may be, during the nine-month period prior to the

 

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date of such Appraisal Reduction Event or (B) the Special Servicer is aware of any material change in the circumstances surrounding the Property or Foreclosed Property, as the case may be, has occurred since the date of the most recent Appraisal that would materially adversely affect the value of the Property or Foreclosed Property, as the case may be, and (iii) no new Appraisal has been obtained or conducted for the Property or Foreclosed Property, as the case may be, within 60 days after the Appraisal Reduction Event has occurred, then (x) until each new Appraisal is delivered, the Appraisal Reduction Amount for the Property shall be deemed to be equal to 25% of the outstanding principal balance of the Mortgage Loan and (y) upon receipt of the new Appraisal by the Special Servicer, the Appraisal Reduction Amount for that Property or Foreclosed Property, as the case may be, shall be recalculated in accordance with the definition of Appraisal Reduction Amount.  Notwithstanding the foregoing, a Trust Appraisal Reduction Amount deemed pursuant to the clause (x) of the preceding sentence shall not be allocated to any Class of Certificates for purposes of (1) determining whether a Control Termination Event or Consultation Termination Event has occurred and is continuing or (2) allocating Voting Rights.

 

(f)            With respect to any Appraisal Reduction Amount calculated for purposes of determining an Appraisal Reduction Event, the appraised value (as determined by an updated Appraisal) of the Property securing the Mortgage Loan will be determined on an “as-is” basis, based upon the current physical condition, use and zoning of the Property as of the date of the Appraisal.

 

If the Certificate Balance of any of the Class G, Class J or Class HRR Certificates (taking into account the application of any Trust Appraisal Reduction Amounts (other than any deemed Trust Appraisal Reduction Amount pursuant to Section 3.7(e)) to notionally reduce the Certificate Balance of such Class) has been reduced to less than 25% of its initial Certificate Balance, such Class will be referred to as the “Appraised-Out Class”.  The Holders of the majority (by Certificate Balance) of the Appraised-Out Class shall have the right, at their sole expense, to (i) require the Special Servicer to order a second Appraisal of the Property (such Holders, the “Requesting Holders”) or (ii) post Threshold Event Collateral as described below..  The Special Servicer shall use commercially reasonable efforts to ensure that such Appraisal is delivered within 60 days from receipt of the Requesting Holders’ written request and shall ensure that such Appraisal is prepared by an Independent Appraiser).

 

In addition, if subsequent to the Class G, Class J or Class HRR Certificates becoming an Appraised-Out Class there is a material change with respect to the Property related to the Appraisal Reduction Amounts that caused such Class to become an Appraised-Out Class, the Requesting Holders shall have the right to request, in writing, that the Special Servicer obtain an additional Appraisal, which request shall set forth their belief of what constitutes a material change to the Property (including any related documentation).  The costs of obtaining such additional Appraisal shall be paid by the Requesting Holders.  Subject to the Special Servicer’s confirmation, determined in accordance with Accepted Servicing Practices, that there has been a change with respect to the Property and such change was material, the Special Servicer shall order another Appraisal from an Independent Appraiser, the identity of which shall be determined by the Special Servicer in accordance with Accepted Servicing Practices (provided that such Independent Appraiser may not be the same Independent Appraiser that provided the Appraisal in respect of which the Requesting Holders are requesting the Special Servicer to obtain an additional Appraisal), and shall recalculate such Appraisal Reduction Amount and the

 

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Trust Appraisal Reduction Amount based upon such second Appraisal. If required by any such recalculation, the Appraised-Out Class shall be reinstated as the Controlling Class. Appraisals that are permitted to be requested by any Appraised-Out Class shall be in addition to any Appraisals that the Special Servicer may otherwise be required to obtain in accordance with Accepted Servicing Practices upon the occurrence of such material change or that the Special Servicer is otherwise required or permitted to order under this Agreement without regard to any Appraisal requests made by any Requesting Holder.

 

Upon receipt of any supplemental Appraisal pursuant to the two preceding paragraphs, the Special Servicer shall recalculate the Appraisal Reduction Amount and the Trust Appraisal Reduction Amount based upon such second Appraisal. If required by any such recalculation, the Appraised-Out Class shall be reinstated as the Controlling Class and the Appraised-Out Class shall have its Certificate Balance notionally restored to the extent required by such recalculation of the Appraisal Reduction Amount and the Trust Appraisal Reduction Amount.

 

Any Appraised-Out Class for which the Requesting Holders are challenging the Special Servicer’s Appraisal Reduction Amounts determination may not exercise any rights of the Controlling Class until such time, if any, as such Class is reinstated as the Controlling Class.

 

The Holders of Certificates representing the majority of the Certificate Balance of the Appraised-Out Class may avoid a Control Termination Event, and the Holders of the Certificates representing a majority of the Certificate Balance of the Class HRR Certificates may avoid an event that would cause the Class HRR Certificates to cease to be the Controlling Class, caused by application of an Appraisal Reduction Amount (the Holders exercising such rights, the “Threshold Cure Holder”) if such Threshold Cure Holder delivers Threshold Event Collateral as a supplement to the appraised value of the Property to the Servicer, together with documentation acceptable to the Servicer in accordance with Accepted Servicing Practices to create and perfect a first priority security interest in favor of the Servicer on behalf of the Trust in such collateral (which must be completed within thirty (30) days of the Special Servicer’s receipt of an independent Appraisal that indicates such Control Termination Event (or control-shift event described above) has occurred) (a “Threshold Event Cure”) and, additionally, (i) pays all cost and expenses incurred by any party to this Agreement associated with the delivery and/or pledge of such Threshold Event Collateral, including the costs and expenses of any opinion of counsel and (ii) notifies the Special Servicer of its election to deliver the Threshold Event Collateral. In the event that the holders of more than one Class have rights to post Threshold Event Collateral, the applicable holders of the Class HRR Certificates will have a first priority right to post Threshold Event Collateral. If a Threshold Event Cure occurs, no Control Termination Event (or control-shift event described above) caused by application of an Appraisal Reduction Amount will be deemed to have occurred. If a letter of credit is furnished as Threshold Event Collateral, the letter of credit must have an initial term no shorter than 6 months and contain an evergreen clause providing for automatic renewal for additional periods not less than 6 months. The Threshold Cure Holder must provide notice of each renewal at least 30 days prior to the expiration date of such letter of credit. If the Servicer does not receive notice of such renewal at least 30 days prior to the expiration date of the letter of credit or if the Servicer receives notice that the letter of credit will not be renewed, then the Servicer shall promptly draw upon such letter of credit and the Servicer shall hold such proceeds thereof as Threshold Event Collateral. If

 

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a letter of credit is furnished as Threshold Event Collateral, the applicable Threshold Cure Holder shall replace such letter of credit with other Threshold Event Collateral within 30 days if the credit ratings of the Threshold Collateral Issuer are downgraded below the required ratings; provided, however, that, if such Threshold Event Collateral is not so replaced, the Servicer shall draw upon such letter of credit and shall hold the proceeds thereof as Threshold Event Collateral. The Threshold Event Cure will continue until (i) the appraised value of the Property plus the value of the Threshold Event Collateral would not be sufficient to prevent a Control Termination Event (or control-shift event described above) from occurring (and should the appraised value of the Property plus the value of the Threshold Event Collateral be insufficient, the Threshold Cure Holder will have 30 days from the new independent Appraisal to deliver new Threshold Event Collateral as supplement to the newly appraised value), or (ii) a determination is made by the Special Servicer in accordance with this Agreement that all proceeds in respect of the Mortgage Loan or Property have been received (a “Final Recovery Determination”). If the appraised value of the Property, upon any redetermination thereof, is sufficient to avoid the occurrence of a Control Termination Event (or control-shift event described above) without taking into consideration any, or some portion of, Threshold Event Collateral previously delivered by the Threshold Cure Holder, any or such portion of Threshold Event Collateral held by the Servicer shall promptly returned to such Threshold Cure Holder (at its direction and sole expense). Upon the Special Servicer’s determination of a Final Recovery Determination with respect to the Mortgage Loan, such cash or proceeds of the letter of credit constituting Threshold Event Collateral shall be transferred into the Collection Account in an amount equal to the lesser of (a) all Threshold Event Collateral or (b) an amount sufficient available to pay all amounts due on the Certificates that were not sufficiently covered by the net sale proceeds or Final Recovery Determination, including all Applied Realized Loss Amounts, and such amount shall be added to the Distribution Account to reimburse Certificateholders for all Realized Losses with respect to the Trust Loan after application of the net proceeds of liquidation, plus accrued and unpaid interest thereon at the applicable interest rate and all other Trust Fund Expenses reimbursable under this Agreement. Any Threshold Event Collateral shall be treated as an “outside reserve fund” (and the right to reimbursement of any amounts with respect thereto) and will be beneficially owned by the Threshold Cure Holder who will be taxed on all income with respect thereto.

 

3.8.          Investment of Funds in the Collection Account and The Foreclosed Property Account. (a) The Servicer, with respect to the Collection Account and the Reserve Accounts, and the Special Servicer, with respect to the Foreclosed Property Account, may direct any depository institution maintaining the Collection Account, the Foreclosed Property Account and any Reserve Account (to the extent interest is not payable to the Borrower under applicable law or the Mortgage Loan Documents), respectively (each, for purposes of this Section 3.8, an “Investment Account”), to invest the funds in such Investment Account 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 direction by the Servicer or Special Servicer, as applicable, to invest funds on deposit in an Investment Account shall be in writing and shall certify that the requested investment is a Permitted Investment which matures at or prior to the time required hereby or is payable on demand.  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)

 

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or in the name of a nominee of the Trustee.  The Trustee shall have sole control (except with respect to investment direction, which shall be in the control of the Servicer (or the Special Servicer, with respect to the Foreclosed Property Account) as an independent contractor to the Trust Fund) over each such investment and any certificate or other instrument evidencing any such investment shall be delivered directly to the Trustee or its agent (which shall initially be the Servicer or Special Servicer, as applicable), together with any document of transfer, if any, necessary to transfer title to such investment to the Trustee or its nominee.  The Trustee and the Certificate Administrator shall have no responsibility or liability with respect to the investment directions of the Servicer or Special Servicer 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 Servicer and Special Servicer, as applicable, shall:

 

(i)           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

 

(ii)          demand payment of all amounts due thereunder promptly upon determination by the Servicer or Special Servicer, as applicable, that such Permitted Investment would not constitute a Permitted Investment in respect of funds thereafter on deposit in the related Investment Account.

 

(b)           All net income and gain realized from investment of funds deposited in the Collection Account and the Reserve Accounts (to the extent not payable to the Borrower under applicable law or the Mortgage Loan Documents) shall be for the benefit of the Servicer in accordance with the terms and priorities of this Agreement.  All net income and gain realized from investment of funds deposited in the Foreclosed Property Account shall be for the benefit of the Special Servicer.  Any net losses on funds in the Collection Account, the Reserve Accounts (except, in the case of any such loss with respect to a Reserve Account, to the extent any such losses are incurred on amounts invested for the benefit of the Borrower under the terms of the Mortgage Loan Documents) or the Foreclosed Property Account shall be reimbursed by the Servicer or the Special Servicer, as applicable, from its own funds promptly, but in any event on or prior to the Remittance Date following the realization of such loss.  Notwithstanding the above, neither the Servicer nor the Special Servicer shall be required to deposit any loss on an investment of funds in an Investment Account if such loss (i) was 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 satisfied the qualifications set forth in the definition of “Eligible Institution” included in Section 1.1 at the time such investment was made, (ii) such loss was incurred within thirty (30) days of the date of such insolvency, (iii) such loss is not the result of fraud, negligence or the willful misconduct of the Servicer or the Special Servicer, as applicable and (iv) and such institution was not an Affiliate of the Servicer, Special Servicer, the Certificate Administrator, the Operating Advisor or Trustee, as applicable.

 

(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

 

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any other performance required under any Permitted Investment, the Servicer 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 Servicer takes any such action, the Trust Fund shall pay or reimburse the Servicer, pursuant to Section 3.4(c), for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Servicer in connection therewith.

 

(d)            For the avoidance of doubt, the Collection Account, the Foreclosed Property 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 (including interest, if any, earned on the investment of funds in such account) will be owned by the Upper-Tier REMIC, each for federal income tax purposes.

 

3.9.          Payment of Taxes, Assessments, etc. The Servicer (other than with respect to the Foreclosed Property) and the Special Servicer (with respect to the Foreclosed Property) shall maintain, accurate records with respect to the Property (or the Foreclosed Property, as the case may be) reflecting the status of taxes, assessments, charges and other similar items that are or may become a lien on the Property (or the Foreclosed Property, as the case may be) and the status of insurance premiums payable in respect of insurance policies required to be maintained pursuant to Section 3.11 hereof.  The Servicer shall obtain, from time to time, all bills for the payment of such items (including renewal premiums).  The Servicer shall pay real estate taxes, insurance premiums and other similar items from funds in the applicable Reserve Account in accordance with the Mortgage Loan Agreement at such time as may be required by the Mortgage Loan Documents.  If the Borrower does not make the necessary payments and/or a Mortgage Loan Event of Default has occurred and amounts in the applicable Reserve Account are insufficient to make such payments, the Servicer shall make a Property Protection Advance, subject to the determination of non-recoverability provided in Section 3.23, from its own funds for amounts payable with respect to all such items related to the Property when and as the same shall become due and payable.  The Servicer shall ensure that the amount of funds in the applicable Reserve Account is increased when and if applicable taxes, assessments, charges and other similar items, ground rents or insurance premiums are increased, in accordance with the terms of the Mortgage Loan Agreement.

 

3.10.       Appointment of Special Servicer. (a) KeyBank National Association is hereby appointed as the initial Special Servicer to service the Mortgage Loan while a Special Servicing Loan Event has occurred and is continuing and perform the other obligations of the Special Servicer hereunder.

 

(b)           If there is a Special Servicer Termination Event with respect to any Special Servicer, such Special Servicer may be removed and replaced pursuant to Sections 7.1 and 7.2.  The Trustee or the Certificate Administrator, as applicable, shall, promptly after receiving notice of any such Special Servicer Termination Event notify the Servicer, the Trustee (in the case of the Certificate Administrator), the Companion Loan Holders, the Certificate Administrator (which shall post such notice on the Certificate Administrator’s Website in accordance with Section 8.14(b)) and the 17g-5 Information Provider (which shall post such notice on the 17g-5 Information Provider’s Website in accordance with Section 8.14(b)).  The

 

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appointment of any such successor Special Servicer shall not relieve the Servicer or the Trustee of their respective obligations to make Advances as set forth herein; provided, however, the initial Special Servicer specified above shall not be liable for any actions or any inaction of such successor Special Servicer.  No termination fee shall be payable to the terminated Special Servicer.  No termination of the Special Servicer and appointment of a successor Special Servicer shall be effective until the successor Special Servicer has assumed all of its responsibilities, duties and liabilities hereunder in writing and a Rating Agency Confirmation with respect to such appointment has been delivered to the Trustee and the Certificate Administrator and their respective counterparts with respect to each Other Securitization Trust.  Any successor Special Servicer shall be deemed to make the representations and warranties provided for in Section 2.5 mutatis mutandis as of the date of its succession.  The terminated Special Servicer shall retain all rights accruing to it under this Agreement, including the right to receive fees accrued prior to its termination and other amounts payable to it (including indemnification payments).

 

(c)            Upon determining that a Special Servicing Loan Event has occurred and is continuing with respect to the Mortgage Loan, the Servicer shall promptly give notice thereof to each other party hereto and the Servicer shall use efforts consistent with Accepted Servicing Practices to provide the Special Servicer with all information, documents (but excluding the original documents constituting the Mortgage File) and records (including records stored electronically on computer tapes, magnetic discs and the like) relating to the Mortgage Loan and reasonably requested by the Special Servicer to enable it to assume its duties hereunder with respect thereto (and concurrently provide a copy of such Mortgage File, exclusive of all Privileged Information, to the Operating Advisor and the Note C Operating Advisor).  The Servicer shall use its reasonable efforts to comply with the preceding sentence within five (5) Business Days of the date that a Special Servicing Loan Event has occurred.  The Servicer in any event shall continue to act as Servicer and administrator of the Mortgage Loan until the Special Servicer has commenced the servicing of the Mortgage Loan, which shall occur upon the receipt by the Special Servicer of the information, documents and records referred to in the preceding sentence.  The Special Servicer shall instruct the Borrower to continue to remit all payments in respect of the Mortgage Loan to the Servicer.  The Servicer shall forward any notices it would otherwise send to the Borrower under the Mortgage Loan to the Special Servicer who shall send such notice to the Borrower while a Special Servicing Loan Event has occurred and is continuing.

 

(d)           Upon determining that a Special Servicing Loan Event is no longer continuing with respect to the Mortgage Loan, the Servicer or the Special Servicer, as applicable, shall promptly give notice thereof to the Companion Loan Holders and each other party hereto, and upon giving such notice such Special Servicing Loan Event shall cease, the Special Servicer’s obligation to service the Mortgage Loan shall terminate and the obligations of the Servicer to service and administer the Mortgage Loan shall resume and the Special Servicer shall return all of the information and materials furnished to the Special Servicer pursuant to Section 3.10(c) to the Servicer.

 

(e)           In making a Major Decision or in servicing the Mortgage Loan during the continuance of a Special Servicing Loan Event, the Special Servicer shall provide to the Custodian originals of documents entered into in connection therewith that are required to be

 

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included within the definition of “Mortgage File” for inclusion in the Mortgage File (to the extent such documents are in the possession of the Special Servicer) and copies of any additional related Mortgage Loan information, including correspondence with the Borrower, and the Special Servicer shall promptly provide copies of all of the foregoing to the Servicer as well as copies of any analysis or internal review prepared by or for the benefit of the Special Servicer; provided that, such materials shall not include any Privileged Information.

 

(f)          During any period in which a Special Servicing Loan Event is continuing, not later than 4:00 p.m. (New York Time) on each Determination Date, the Special Servicer shall deliver to the Servicer, to the extent not included in the CREFC® Special Servicer Loan File, a written statement describing (i) the amount of all payments on account of interest received on the Mortgage Loan, the amount of all payments on account of principal received on the Mortgage Loan, the amount of Insurance Proceeds, Condemnation Proceeds and Net Liquidation Proceeds received, the amount of any Foreclosure Proceeds received with respect to the Property, and the amount of net income or net loss, as determined from 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 rental income that does not constitute Rents from Real Property with respect to, the Foreclosed Property, in each case in accordance with Section 12.2 and (ii) such additional information relating to the Mortgage Loan as the Servicer or Certificate Administrator reasonably requests to enable it to perform its duties under this Agreement.

 

(g)           [Reserved].

 

(h)           Notwithstanding the provisions of the preceding subsection (c), the Servicer shall maintain ongoing payment records with respect to the Mortgage Loan and shall provide the Special Servicer with any information reasonably required by the Special Servicer to perform its duties under this Agreement.

 

(i)          Within sixty (60) days after a Special Servicing Loan Event occurs (the “Initial Delivery Date”), the Special Servicer shall prepare a report (the “Asset Status Report”) for the Mortgage Loan and the Property to and will be required to amend, update or create a new Asset Status Report to the extent that during the course of the resolution of the Mortgage Loan material changes in the circumstances and/or strategy reflected in any current Final Asset Status Report are necessary to reflect the then current circumstances and recommendation as to how the Specially Serviced Mortgage Loan might be returned to performing status or otherwise liquidated in accordance with Accepted Servicing Practices (each such report a “Subsequent Asset Status Report”). Each Final Asset Status Report will be required to be delivered in electronic form to the Servicer, the Directing Holder (but only so long as no Consultation Termination Event has occurred), the Operating Advisor, the Note C Operating Advisor, the 17g-5 Information Provider in accordance with Section 8.14(b) (who shall promptly post it to the 17g-5 Information Provider’s Website pursuant to Section 8.14(b)) and the Companion Loan Holders.  Such Asset Status Report shall set forth the following information (other than Privileged Information) to the extent reasonably determinable:

 

(i)            summary of the status of the Mortgage Loan and any negotiations with the Borrower;

 

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(ii)         a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with Accepted Servicing Practices, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan and whether outside legal counsel has been retained;

 

(iii)         the most current rent roll and income or operating statement available for the Property;

 

(iv)        the Special Servicer’s recommendations on how the Mortgage Loan might be returned to performing status and returned to the Servicer for regular servicing or otherwise realized upon;

 

(v)         the appraised value of the Property together with the Appraisal or the assumptions used in the calculation thereof;

 

(vi)        the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional Mortgage Loan Events of Default;

 

(vii)        a description of any proposed amendment, modification or waiver of a material term of any ground lease;

 

(viii)       a description of any proposed actions;

 

(ix)          the alternative courses of action considered by the Special Servicer in connection with the proposed actions;

 

(x)          the decision that the Special Servicer intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; and an analysis of whether or not taking such action is reasonably likely to produce a greater recovery on a net present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable discount rate used) and all related assumptions; 

 

(xi)         a summary of the status of any action that was described in the most recent prior Asset Status Report and subsequently effected by the Special Servicer, excluding any Privileged Information; and

 

(xii)        such other information as the Special Servicer deems relevant in light of the proposed action and Accepted Servicing Practices.

 

(j)           The Special Servicer shall (x) deliver to the 17g-5 Information Provider (who shall post on the 17g-5 Information Provider’s Website pursuant to Section 8.14(b)) the Final Asset Status Report, (y) deliver to the Certificate Administrator a proposed notice to Certificateholders that will include a summary of the Final Asset Status Report in an electronic

 

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format, which format is reasonably acceptable to the Certificate Administrator (which will be a brief summary of the current status of the Property and current strategy with respect to the resolution and workout of the Mortgage Loan), and the Certificate Administrator shall post such summary (but not the Final Asset Status Report itself) on the Certificate Administrator’s Website pursuant to Section 8.14(b) and (z) implement the Final Asset Status Report in the form delivered to the 17g-5 Information Provider.  Subject to the consent and consultation rights of the Directing Holder described in Section 3.10(i), the Special Servicer may, from time to time, modify any Final Asset Status Report it has previously delivered.  Upon such modification, the Special Servicer shall prepare an updated summary and deliver the updated summary to the Certificate Administrator and deliver the modified Final Asset Status Report to the 17g-5 Information Provider.  The 17g-5 Information Provider and the Certificate Administrator shall post such modified Final Asset Status Report on the 17g-5 Information Provider’s Website pursuant to Section 8.14(b), and the Certificate Administrator shall post such summary on the Certificate Administrator’s Website.  In no event, however, will the Special Servicer be required to deliver a summary of any interim or draft Asset Status Report.

 

Subject to the last paragraph of Section 9.3(a), prior to the occurrence and continuance of a Control Termination Event, if the Directing Holder does not disapprove an Asset Status Report within ten (10) Business Days, in writing, the Special Servicer shall implement the recommended action as outlined in the Asset Status Report.  In addition, so long as no Control Termination Event has occurred or is continuing, the Directing Holder may object to any Asset Status Report within ten (10) Business Days of receipt and provided that the Special Servicer has not made the determination described below, the Special Servicer shall revise such Asset Status Report and deliver a new Asset Status Report as soon as practicable, but in no event later than thirty (30) days after such disapproval, to the Directing Holder, the Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Note C Operating Advisor, the Companion Loan Holders and the 17g-5 Information Provider (which shall promptly post such revised Asset Status Report on the 17g-5 Information Provider’s Website in accordance with Section 8.14(b)).  Prior to the occurrence and continuance of a Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above in Section 3.10(i) until the Directing Holder shall fail to disapprove such revised Asset Status Report in writing within ten (10) Business Days of receiving such revised Asset Status Report, until the Directing Holder’s approval is no longer required or until the Special Servicer makes the determination described below.  Notwithstanding the foregoing, the Special Servicer (A) may, following the occurrence of an extraordinary event with respect to the Property or the Mortgage Loan, or if a failure to take any such action at such time would be inconsistent with Accepted Servicing Practices, the Special Servicer may take any such actions with respect to the Property or the Mortgage Loan before the expiration of a ten (10) Business Day period and (B) shall implement the recommended action as outlined in the Asset Status Report, in each case if it makes a determination in accordance with Accepted Servicing Practices the objection is not in the best interest of all the Certificateholders; provided, however, that, if the Directing Holder does not approve or is not deemed to have approved an Asset Status Report within ninety (90) days from the first submission of an Asset Status Report, then the Special Servicer and the Directing Holder shall use reasonable efforts to negotiate a mutually agreeable Asset Status Report during the next thirty (30) days, and if they are unable to reach an agreement within such 30-day period, the Special Servicer shall take the action recommended in its most recently submitted Asset Status Report; provided, further, that such Asset Status Report is not intended to replace or satisfy any

 

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other specific consent or approval right that the Directing Holder may have pursuant to Section 9.3.