WELLS FARGO COMMERCIAL MORTGAGE SECURITIES, INC., as Depositor, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Master Servicer, RIALTO CAPITAL ADVISORS, LLC, as Special Servicer, TRIMONT REAL ESTATE ADVISORS, INC., as Trust Advisor, WELLS FARGO BANK,...
Exhibit 4.1
Execution Version
XXXXX FARGO COMMERCIAL MORTGAGE SECURITIES, INC., as Depositor,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
RIALTO CAPITAL ADVISORS, LLC,
as Special Servicer,
TRIMONT REAL ESTATE ADVISORS, INC.,
as Trust Advisor,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Administrator, as Tax Administrator and as Custodian,
and
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee
______________________________________________
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2015
______________________________________________
$955,224,153
Aggregate Initial Certificate Principal Balance
______________________________________________
Commercial Mortgage Pass-Through Certificates
Series 2015-NXS1
TABLE OF CONTENTS
Page | ||
ARTICLE I | ||
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; | ||
CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL | ||
Section 1.01 | Defined Terms | 9 |
Section 1.02 | General Interpretive Principles | 117 |
Section 1.03 | Certain Calculations in Respect of the Mortgage Pool | 117 |
Section 1.04 | Cross-Collateralized Mortgage Loans | 122 |
Section 1.05 | Incorporation of Preliminary Statement | 122 |
ARTICLE II | ||
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND | ||
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS, | ||
REMIC II REGULAR INTERESTS, REMIC III COMPONENTS, REMIC I RESIDUAL | ||
INTEREST, REMIC II RESIDUAL INTEREST, REMIC III RESIDUAL INTEREST | ||
AND CERTIFICATES | ||
Section 2.01 | Conveyance of Mortgage Loans | 122 |
Section 2.02 | Acceptance of Mortgage Loans by Trustee | 128 |
Section 2.03 | Certain Repurchases and Substitutions of Mortgage Loans by the Responsible Repurchase Parties | 131 |
Section 2.04 | Representations and Warranties of the Depositor | 139 |
Section 2.05 | Representations and Warranties of the Master Servicer | 141 |
Section 2.06 | Representations and Warranties of the Special Servicer | 143 |
Section 2.07 | Representations and Warranties of the Trust Advisor | 144 |
Section 2.08 | Representations and Warranties of the Certificate Administrator | 146 |
Section 2.09 | Representations and Warranties of the Tax Administrator | 147 |
Section 2.10 | Representations, Warranties and Covenants of the Trustee | 149 |
Section 2.11 | Creation of REMIC I; Issuance of the REMIC I Regular Interests and the REMIC I Residual Interest; Certain Matters Involving REMIC I. | 150 |
Section 2.12 | Conveyance of the REMIC I Regular Interests; Acceptance of the REMIC I Regular Interests by Trustee | 154 |
Section 2.13 | Creation of REMIC II; Issuance of the REMIC II Regular Interests and the REMIC II Residual Interest; Certain Matters Involving REMIC II | 154 |
Section 2.14 | Conveyance of the REMIC II Regular Interests; Acceptance of the REMIC II Regular Interests by Trustee | 155 |
Section 2.15 | Creation of REMIC III; Issuance of the Regular Certificates, the Class A-S Regular Interest, the Class B Regular Interest, the Class C Regular Interest, the REMIC III Components and the REMIC III Residual Interest; Certain Matters Involving REMIC III | 156 |
Section 2.16 | Issuance of the Class R Certificates | 159 |
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Section 2.17 | Grantor Trust Pool; Issuance of the Class A-S, Class B, Class C, Class PEX and Class V Certificates | 159 |
ARTICLE III | ||
ADMINISTRATION AND SERVICING OF THE TRUST FUND | ||
Section 3.01 | General Provisions | 160 |
Section 3.02 | Collection of Mortgage Loan Payments | 167 |
Section 3.03 | Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve Accounts | 168 |
Section 3.04 | Collection Account, Distribution Account, Interest Reserve Account, Excess Liquidation Proceeds Account, Serviced Pari Passu Companion Loan Custodial Account and Loss of Value Reserve Fund | 172 |
Section 3.05 | Permitted Withdrawals From the Collection Account, the Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds Account | 180 |
Section 3.06 | Investment of Funds in the Accounts | 196 |
Section 3.07 | Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage | 198 |
Section 3.08 | Enforcement of Alienation Clauses | 204 |
Section 3.09 | Realization Upon Defaulted Serviced Mortgage Loans | 209 |
Section 3.10 | Trustee to Cooperate; Release of Mortgage Files | 213 |
Section 3.11 | Master Servicing and Special Servicing Compensation; Interest on and Reimbursement of Servicing Advances; Payment of Certain Expenses; Obligations of the Trustee Regarding Back-up Servicing Advances | 215 |
Section 3.12 | Property Inspections; Collection of Financial Statements | 229 |
Section 3.13 | [Reserved] | 231 |
Section 3.14 | [Reserved] | 231 |
Section 3.15 | Access to Information | 231 |
Section 3.16 | Title to Administered REO Property; REO Account | 232 |
Section 3.17 | Management of Administered REO Property | 234 |
Section 3.18 | Sale of Defaulted Mortgage Loans and Administered REO Properties; Sale of the Non-Trust-Serviced Pooled Mortgage Loans | 238 |
Section 3.19 | Additional Obligations of Master Servicer and Special Servicer | 246 |
Section 3.20 | Modifications, Waivers, Amendments and Consents | 252 |
Section 3.21 | Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping | 261 |
Section 3.22 | Sub-Servicing Agreements | 263 |
Section 3.23 | Subordinate Class Representative | 267 |
Section 3.24 | Asset Status Reports and Certain Rights and Powers of the Subordinate Class Representative | 269 |
Section 3.25 | Application of Default Charges | 276 |
Section 3.26 | Certain Matters Regarding the Serviced Loan Combinations | 278 |
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Page | ||
Section 3.27 | Rating Agency Confirmations; Communications with Rating Agencies | 283 |
Section 3.28 | The Trust Advisor | 287 |
Section 3.29 | [Reserved] | 297 |
Section 3.30 | General Acknowledgement Regarding Non-Serviced Pari Passu Companion Loan Holders | 298 |
Section 3.31 | Matters Regarding the Non-Trust-Serviced Pooled Mortgage Loans | 298 |
Section 3.32 | Litigation Control | 298 |
ARTICLE IV | ||
PAYMENTS TO CERTIFICATEHOLDERS | ||
Section 4.01 | Distributions | 301 |
Section 4.02 | Distribution Date Statements; Servicer Reporting | 313 |
Section 4.03 | P&I Advances | 322 |
Section 4.04 | Allocation of Realized Losses and Additional Trust Fund Expenses | 326 |
Section 4.05 | Allocation of Certain Trust Advisor Expenses | 328 |
Section 4.06 | Calculations | 330 |
ARTICLE V | ||
THE CERTIFICATES | ||
Section 5.01 | The Certificates | 331 |
Section 5.02 | Registration of Transfer and Exchange of Certificates | 332 |
Section 5.03 | Book-Entry Certificates | 340 |
Section 5.04 | Mutilated, Destroyed, Lost or Stolen Certificates | 342 |
Section 5.05 | Persons Deemed Owners | 342 |
Section 5.06 | Certification by Certificate Owners | 342 |
Section 5.07 | Appointment of Authenticating Agents | 343 |
Section 5.08 | [Reserved.] | 344 |
Section 5.09 | Exchanges of Exchangeable Certificates. | 344 |
ARTICLE VI | ||
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE TRUST ADVISOR | ||
Section 6.01 | Liability of the Depositor, the Master Servicer, the Special Servicer and the Trust Advisor | 345 |
Section 6.02 | Merger, Consolidation or Conversion of the Depositor, the Master Servicer, the Trust Advisor or the Special Servicer | 345 |
Section 6.03 | Limitation on Liability of the Depositor, the Trust Advisor, the Master Servicer and the Special Servicer | 346 |
Section 6.04 | Resignation of the Master Servicer or the Special Servicer | 349 |
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TABLE OF CONTENTS
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Page | ||
Section 6.05 | Replacement of Special Servicer | 351 |
Section 6.06 | Rights of the Depositor and the Trustee in Respect of the Master Servicer and the Special Servicer | 355 |
Section 6.07 | Master Servicer and Special Servicer May Own Certificates | 356 |
ARTICLE VII | ||
SERVICER TERMINATION EVENTS | ||
Section 7.01 | Servicer Termination Event | 356 |
Section 7.02 | Trustee To Act; Appointment of Successor | 362 |
Section 7.03 | Notification to Certificateholders | 363 |
Section 7.04 | Waiver of Servicer Termination Event | 364 |
Section 7.05 | Additional Remedies of Trustee Upon Servicer Termination Event | 365 |
ARTICLE VIII | ||
THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE ADMINISTRATOR AND THE TAX ADMINISTRATOR | ||
Section 8.01 | Duties of the Trustee, the Certificate Administrator and the Tax Administrator | 365 |
Section 8.02 | Certain Matters Affecting the Trustee, the Certificate Administrator and the Tax Administrator | 368 |
Section 8.03 | The Trustee, the Certificate Administrator and the Tax Administrator not Liable for Validity or Sufficiency of Certificates or Mortgage Loans | 370 |
Section 8.04 | The Trustee, the Certificate Administrator and the Tax Administrator May Own Certificates | 371 |
Section 8.05 | Fees and Expenses of the Trustee, the Certificate Administrator and the Tax Administrator; Indemnification of and by the Trustee, the Certificate Administrator and the Tax Administrator | 371 |
Section 8.06 | Eligibility Requirements for the Trustee, the Certificate Administrator and the Tax Administrator | 373 |
Section 8.07 | Resignation and Removal of the Trustee, the Certificate Administrator and the Tax Administrator | 374 |
Section 8.08 | Successor Trustee, Certificate Administrator and Tax Administrator | 377 |
Section 8.09 | Merger or Consolidation of the Trustee, the Certificate Administrator or the Tax Administrator | 378 |
Section 8.10 | Appointment of Co-Trustee or Separate Trustee | 378 |
Section 8.11 | Appointment of Custodian | 379 |
Section 8.12 | Access to Certain Information | 380 |
Section 8.13 | Cooperation Under Applicable Banking Law | 387 |
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TABLE OF CONTENTS
(Continued)
Page | ||
ARTICLE IX | ||
TERMINATION | ||
Section 9.01 | Termination Upon Repurchase or Liquidation of All Mortgage Loans | 388 |
Section 9.02 | Additional Termination Requirements | 391 |
ARTICLE X | ||
ADDITIONAL TAX PROVISIONS | ||
Section 10.01 | REMIC Administration | 392 |
Section 10.02 | Grantor Trust Administration | 395 |
Section 10.03 | The Depositor, the Master Servicer, the Special Servicer and the Trustee to Cooperate with the Tax Administrator | 398 |
ARTICLE XI | ||
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE | ||
Section 11.01 | Intent of the Parties; Reasonableness | 398 |
Section 11.02 | Notification Requirements and Deliveries in Connection with Securitization of a Serviced Pari Passu Companion Loan | 400 |
Section 11.03 | Sub-Servicers; Subcontractors and Agents | 401 |
Section 11.04 | Information to be Provided by the Master Servicer and the Special Servicer | 402 |
Section 11.05 | Information to be Provided by the Trustee | 402 |
Section 11.06 | Filing Obligations | 403 |
Section 11.07 | Form 10-D Filings | 403 |
Section 11.08 | Form 10-K Filings | 406 |
Section 11.09 | Xxxxxxxx-Xxxxx Certification | 409 |
Section 11.10 | Form 8-K Filings | 410 |
Section 11.11 | Suspension of Exchange Act Filings; Incomplete Exchange Act Filings; Amendments to Exchange Act Reports | 411 |
Section 11.12 | Annual Compliance Statements | 412 |
Section 11.13 | Annual Reports on Assessment of Compliance with Servicing Criteria | 414 |
Section 11.14 | Annual Independent Public Accountants’ Servicing Report | 415 |
Section 11.15 | Exchange Act Reporting Indemnification | 416 |
Section 11.16 | Amendments | 419 |
Section 11.17 | Exchange Act Report Signatures; Delivery of Notices; Interpretation of Grace Periods | 420 |
Section 11.18 | Termination of the Certificate Administrator | 421 |
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TABLE OF CONTENTS
(Continued)
Page | ||
ARTICLE XII | ||
MISCELLANEOUS PROVISIONS | ||
Section 12.01 | Amendment | 422 |
Section 12.02 | Recordation of Agreement; Counterparts | 424 |
Section 12.03 | Limitation on Rights of Certificateholders | 425 |
Section 12.04 | Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury | 426 |
Section 12.05 | Notices | 426 |
Section 12.06 | Communications by Electronic Mail | 428 |
Section 12.07 | Severability of Provisions | 428 |
Section 12.08 | Successors and Assigns; Beneficiaries | 428 |
Section 12.09 | Article and Section Headings | 429 |
Section 12.10 | Notices to Subordinate Class Representative | 429 |
Section 12.11 | Complete Agreement | 429 |
Section 12.12 | Precautionary Trust Indenture Act Provisions | 429 |
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TABLE OF CONTENTS
(Continued)
EXHIBITS
EXHIBIT A-1 | Form of Certificates (other than Class R and Class V Certificates) | |
EXHIBIT A-2 | Form of Class R Certificates | |
EXHIBIT A-3 | Form of Class V Certificates | |
EXHIBIT B | Letters of Representations Between Issuer and Initial Depository (Public and Private) | |
EXHIBIT C-1A | Form of Transferor Certificate (For Use in Connection With Transfers of Non-Registered Certificates to Non-QIB Accredited Investors) | |
EXHIBIT C-1B | Form of Transferee Certificate (For Use in Connection with Transfers of Non-Registered Certificates to Non-QIB Accredited Investors) | |
EXHIBIT C-2A | Form of Transferor Certificate (For Use in Connection with Transfers of Non-Registered Certificates to QIBs) | |
EXHIBIT C-2B | Form of Transferee Certificate (For Use in Connection with Transfers of Non-Registered Certificates to QIBs) | |
EXHIBIT C-3A | Form of Transferor Certificate (For Use in Connection with Transfers of Non-Registered Certificates Under Regulation S) | |
EXHIBIT C-3B | Form of Transferee Certificate (For Use in Connection with Transfers of Non-Registered Certificates Under Regulation S) | |
EXHIBIT D-1 | Form of Transferee Certificate in Connection with ERISA (Non-Investment Grade Certificates Held in Physical Form) | |
EXHIBIT D-2 | Form of Transferee Certificate in Connection with ERISA (Certificates Held in Book-Entry Form) | |
EXHIBIT E-1 | Form of Transfer Affidavit and Agreement for Transfers of Class R Certificates | |
EXHIBIT E-2 | Form of Transferor Certificate for Transfers of Class R Certificates | |
EXHIBIT F-1 | Form of Master Servicer Request for Release | |
EXHIBIT F-2 | Form of Special Servicer Request for Release | |
EXHIBIT F-3A | Form of Transferor Certificate for Transfer of the Excess Servicing Fee Rights | |
EXHIBIT F-3B | Form of Transferee Certificate for Transfer of the Excess Servicing Fee Rights | |
EXHIBIT G-1 | Form of Distribution Date Statement | |
EXHIBIT G-2 | Minimum Information for Distribution Date Statement | |
EXHIBIT H | [Reserved] | |
EXHIBIT I-1 | Form of Notice and Acknowledgment Concerning Replacement of Special Servicer | |
EXHIBIT I-2 | Form of Acknowledgment of Proposed Special Servicer | |
EXHIBIT J | Form of UCC-1 Financing Statement | |
EXHIBIT K-1 | Form of Investor Certification for Non-Borrower Affiliates | |
EXHIBIT K-2 | Form of Investor Certification for Borrower Affiliates | |
EXHIBIT K-3 | Form of Investor Confidentiality Agreement | |
EXHIBIT K-4 | Form of Notice of Mezzanine Collateral Foreclosure | |
EXHIBIT L | Form of Power of Attorney by Trustee for Master Servicer and Special Servicer | |
EXHIBIT M | Form of Final Certification of Custodian |
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TABLE OF CONTENTS
(Continued)
EXHIBIT N | Form of Defeasance Certification | |
EXHIBIT O-1 | Form of Trust Advisor Annual Report (Subordinate Control Period) | |
EXHIBIT O-2 | Form of Trust Advisor Annual Report (Collective Consultation Period and Senior Consultation Period) | |
EXHIBIT O-3 | Form of Notice from Trust Advisor Recommending Replacement of Special Servicer | |
EXHIBIT P | Form of NRSRO Certification | |
EXHIBIT Q | Form of Online Vendor Certification | |
EXHIBIT R | Additional Disclosure Notification | |
EXHIBIT S-1 | Form of Trustee Backup Certification | |
EXHIBIT S-2 | Form of Custodian Backup Certification | |
EXHIBIT S-3 | Form of Certificate Administrator Backup Certification | |
EXHIBIT S-4 | Form of Master Servicer Backup Certification | |
EXHIBIT S-5 | Form of Special Servicer Backup Certification | |
EXHIBIT S-6 | Form of Trust Advisor Backup Certification | |
EXHIBIT T | Form of Xxxxxxxx-Xxxxx Certification | |
EXHIBIT U | Form of Outside Master Servicer Notice | |
EXHIBIT V | [Reserved] | |
EXHIBIT W | [Reserved] | |
EXHIBIT X | Form of Notice of Exchange of Exchangeable Certificates | |
SCHEDULES | ||
SCHEDULE I | Mortgage Loan Schedule | |
SCHEDULE II | Schedule of Exceptions to Mortgage File Delivery (under Section 2.02(a)) | |
SCHEDULE III | Servicing Criteria to be Addressed in Assessment of Compliance | |
SCHEDULE IV | Designated Sub-Servicers | |
SCHEDULE V | Additional Form 10-D Disclosure | |
SCHEDULE VI | Additional Form 10-K Disclosure | |
SCHEDULE VII | Form 8-K Disclosure Information | |
SCHEDULE VIII | Initial NOI Information for Significant Obligors | |
SCHEDULE IX | Schedule of Initial Serviced Pari Passu Companion Loan Holders | |
SCHEDULE X | Class A-SB Planned Principal Balance Schedule | |
SCHEDULE XI | Designated Escrow/Reserve Loans |
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This Pooling and Servicing Agreement (this “Agreement”), is dated and effective as of April 1, 2015, among XXXXX FARGO COMMERCIAL MORTGAGE SECURITIES, INC., as Depositor, XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Master Servicer, RIALTO CAPITAL ADVISORS, LLC, as Special Servicer, TRIMONT REAL ESTATE ADVISORS, INC., as Trust Advisor, XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Certificate Administrator, as Tax Administrator and as Custodian, and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued hereunder in multiple Classes, which in the aggregate will evidence the entire beneficial ownership interest in the Trust to be created hereunder.
REMIC I
As provided herein, the Tax Administrator will elect to treat the segregated pool of assets consisting of the Mortgage Loans (exclusive of certain amounts payable thereon) and certain other assets as a REMIC for federal income tax purposes, and such segregated pool of assets will be designated as “REMIC I”. The Class R Certificates will evidence ownership of (among other things) the sole class of “residual interests” in REMIC I for purposes of the REMIC Provisions. The Latest Possible Maturity Date for each REMIC I Regular Interest is the date that is the Rated Final Distribution Date. None of the REMIC I Regular Interests will be certificated.
REMIC II
As provided herein, the Tax Administrator will elect to treat the segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC for federal income tax purposes, and such segregated pool of assets will be designated as “REMIC II”. The Class R Certificates will evidence ownership of (among other things) the sole class of “residual interests” in REMIC II for purposes of the REMIC Provisions. The following table sets forth the designation, the REMIC II Remittance Rate and the initial Uncertificated Principal Balance for each of the REMIC II Regular Interests. The Latest Possible Maturity Date for each REMIC II Regular Interest is the date that is the Rated Final Distribution Date. None of the REMIC II Regular Interests will be certificated.
Designation | REMIC II Remittance Rate | Initial Uncertificated Principal Balance | ||||
A-1 | Variable(1) | $ | 32,424,000 | |||
A-2 | Variable(1) | $ | 164,219,000 | |||
A-3 | Variable(1) | $ | 20,791,000 | |||
A-4 | Variable(1) | $ | 155,000,000 | |||
A-5 | Variable(1) | $ | 236,966,000 | |||
A-SB | Variable(1) | $ | 59,256,000 | |||
A-S | Variable(1) | $ | 54,926,000 |
B | Variable(1) | $ | 52,537,000 | |||
C | Variable(1) | $ | 45,373,000 | |||
D | Variable(1) | $ | 53,732,000 | |||
E | Variable(1) | $ | 22,686,000 | |||
F | Variable(1) | $ | 10,746,000 | |||
G | Variable(1) | $ | 46,568,153 |
(1) | The REMIC II Remittance Rate for each REMIC II Regular Interest shall be a variable rate per annum calculated in accordance with the definition of “REMIC II Remittance Rate”. |
REMIC III
As provided herein, the Tax Administrator will elect to treat the segregated pool of assets consisting of the REMIC II Regular Interests as a REMIC for federal income tax purposes, and such segregated pool of assets will be designated as “REMIC III”. The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-SB, Class D, Class E, Class F and Class G Certificates and the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest will evidence ownership of a class of “regular interests” in REMIC III and the Class X-A, Class X-B, Class X-E, Class X-F and Class X-G Certificates will evidence ownership of seven (7), two (2), one (1), one (1) and one (1) classes of “regular interests” in REMIC III, respectively, all as described herein. The Class A-S Certificates and Class A-S-PEX Component will each evidence ownership of a specified portion from time to time of the Class A-S Regular Interest. The Class B Certificates and Class B-PEX Component will each evidence ownership of a specified portion from time to time of the Class B Regular Interest. The Class C Certificates and Class C-PEX Component will each evidence ownership of a specified portion from time to time of the Class C Regular Interest. The Class R Certificates will evidence ownership of (among other things) the sole class of “residual interests” in REMIC III for purposes of the REMIC Provisions. The Latest Possible Maturity Date for each Class of Regular Certificates (other than the Interest Only Certificates), the Class A-S Regular Interest, the Class B Regular Interest, the Class C Regular Interest and the REMIC III Components is the date that is the Rated Final Distribution Date.
Designations of the REMIC III Components
The REMIC III Components of the Class X-A Certificates are hereby irrevocably assigned the alphanumeric designation under the column heading “REMIC III Component of Class X-A Certificates” in the table that appears under “Corresponding REMIC II Regular Interests”. The REMIC III Components of the Class X-B Certificates are hereby irrevocably assigned the alphanumeric designations under the column heading “REMIC III Component of Class X-B Certificates” in the table that appears under “Corresponding REMIC II Regular Interests”. The REMIC III Component of the Class X-E Certificates is hereby irrevocably assigned the alphanumeric designation under the column heading “REMIC III Component of Class X-E Certificates” in the table that appears under “Corresponding REMIC II Regular Interests”. The REMIC III Component of the Class X-F Certificates is hereby irrevocably assigned the alphanumeric designation under the column heading “REMIC III Component of Class X-F Certificates” in the table that appears under “Corresponding REMIC II Regular Interests”. The REMIC III Component of the Class X-G Certificates is hereby irrevocably assigned the alphanumeric designation under the column heading “REMIC III Component of
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Class X-G Certificates” in the table that appears under “Corresponding REMIC II Regular Interests”.
Corresponding REMIC II Regular Interests
The following table irrevocably sets forth, with respect to each REMIC II Regular Interest (i) the Class of Certificates, Class PEX Component and/or Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest and (ii) the REMIC III Component of the Class X-A, Class X-B, Class X-E, Class X-F or Class X-G Certificates, in each case for which such REMIC II Regular Interest constitutes a Corresponding REMIC II Regular Interest:
REMIC II Regular Interest |
Class of Certificates or REMIC III Regular Interest |
REMIC III Component of Class X-A Certificates |
REMIC III Component of Class X-B Certificates |
REMIC III Component of Class X-E Certificates |
REMIC III Component of Class X-F Certificates |
REMIC III Component of Class X-G Certificates | ||||||
A-1 | A-1 Certificates | A-1-X-A | N/A | N/A | N/A | N/A | ||||||
A-2 | A-2 Certificates | A-2-X-A | N/A | N/A | N/A | N/A | ||||||
A-3 | A-3 Certificates | A-3-X-A | N/A | N/A | N/A | N/A | ||||||
A-4 | A-4 Certificates | A-4-X-A | N/A | N/A | N/A | N/A | ||||||
A-5 | A-5 Certificates | A-5-X-A | N/A | N/A | N/A | N/A | ||||||
A-SB | A-SB Certificates | A-SB-X-A | N/A | N/A | N/A | N/A | ||||||
A-S | A-S Certificates and A-S-PEX Component (collectively representing the Class A-S Regular Interest) | A-S-X-A | N/A | N/A | N/A | N/A | ||||||
B | B Certificates and B-PEX Component (collectively representing the Class B Regular Interest) | N/A | B-X-B | N/A | N/A | N/A |
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C | C Certificates and C-PEX Component (collectively representing the Class C Regular Interest) | N/A | C-X-B | N/A | N/A | N/A | ||||||
D | D Certificates | N/A | N/A | N/A | N/A | N/A | ||||||
E | E Certificates | N/A | N/A | E-X-E | N/A | N/A | ||||||
F | F Certificates | N/A | N/A | N/A | F-X-F | N/A | ||||||
G | G Certificates | N/A | N/A | N/A | N/A | G-X-G |
Each of (i) the Cut-off Date Pool Balance, (ii) the initial aggregate Uncertificated Principal Balance of the REMIC I Regular Interests, (iii) the initial aggregate Uncertificated Principal Balance of the REMIC II Regular Interests and (iv) the initial aggregate Class Principal Balance of the respective Classes of Regular Certificates (other than the Interest Only Certificates) and the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest will be $955,224,153.
Class Designations of the Certificates , the Class PEX Components and the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest.
The following table irrevocably sets forth the Class Designation, Pass-Through Rate and initial Class Principal Balance for each Class of Certificates, the Class PEX Components and the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest.
Class Designation | Pass-Through Rate | Initial Class Principal Balance | ||||
Class A-1 | 1.3420% per annum | $ | 32,424,000 | |||
Class A-2 | 2.6320% per annum | $ | 164,219,000 | |||
Class A-3 | 3.0580% per annum | $ | 20,791,000 | |||
Class A-4 | 2.8740% per annum | $ | 155,000,000 | |||
Class A-5 | 3.1480% per annum | $ | 236,966,000 | |||
Class A-SB | 2.9340% per annum | $ | 59,256,000 | |||
Class X-A | Variable(1) | (2) | ||||
Class X-B | Variable(1) | (3) | ||||
Class X-E | Variable(1) | (4) | ||||
Class X-F | Variable(1) | (5) | ||||
Class X-G | Variable(1) | (6) | ||||
Class A-S(7) | 3.4060% per annum | $ | 54,926,000 | |||
Class A-S-PEX Component(7) | 3.4060% per annum | $ | 0 | |||
Class A-S Regular Interest(7) | 3.4060% per annum | $ | 54,926,000 | |||
Class B(7) | Variable(1) | $ | 52,537,000 | |||
Class B-PEX Component(7) | Variable(1) | $ | 0 | |||
Class B Regular Interest(7) | Variable(1) | $ | 52,537,000 |
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Class C(7) | Variable(1) | $ | 45,373,000 | |||
Class C-PEX Component(7) | Variable(1) | $ | 0 | |||
Class C Regular Interest(7) | Variable(1) | $ | 45,373,000 | |||
Class PEX(7) | (8) | $ | 0 | |||
Class D | Variable(1) | $ | 53,732,000 | |||
Class E | Variable(1) | $ | 22,686,000 | |||
Class F | Variable(1) | $ | 10,746,000 | |||
Class G | Variable(1) | $ | 46,568,153 | |||
Class R | None | None | ||||
Class V | None | (9) |
(1) | The respective Pass-Through Rates for the Interest Only Certificates and the Class B, Class C, Class D, Class E, Class F and Class G Certificates, the Class B-PEX Component, the Class C-PEX Component, the Class B Regular Interest and the Class C Regular Interest, will, in the case of each of those Classes, be a variable rate per annum calculated in accordance with the definition of “Pass-Through Rate”. |
(2) | The Class X-A Certificates will not have a Class Principal Balance and will not entitle their Holders to receive distributions of principal. The Class X-A Certificates will evidence the ownership of seven (7) REMIC regular interests, each corresponding to one of the components of the notional balance of the Class X-A Certificates. The Class X-A Certificates will have a Class Notional Amount which will be equal to the aggregate of the Component Notional Amounts of the REMIC III Components of such Class from time to time. As more specifically provided herein, interest in respect of such Class of Certificates will consist of the aggregate amount of interest accrued on the respective Component Notional Amounts of such Class’ REMIC III Components from time to time. |
(3) | The Class X-B Certificates will not have a Class Principal Balance and will not entitle their Holders to receive distributions of principal. The Class X-B Certificates will evidence the ownership of two (2) REMIC regular interests, each corresponding to one of the components of the notional balance of the Class X-B Certificates. The Class X-B Certificates will have a Class Notional Amount which will be equal to the aggregate of the Component Notional Amounts of the REMIC III Components of such Class from time to time. As more specifically provided herein, interest in respect of such Class of Certificates will consist of the aggregate amount of interest accrued on the respective Component Notional Amounts of such Class’ REMIC III Components from time to time. |
(4) | The Class X-E Certificates will not have a Class Principal Balance and will not entitle their Holders to receive distributions of principal. The Class X-E Certificates will evidence the ownership of one (1) REMIC regular interest, corresponding to the component of the notional balance of the Class X-E Certificates. The Class X-E Certificates will have a Class Notional Amount which will be equal to the Component Notional Amount of the REMIC III Component of such Class from time to time. As more specifically provided herein, interest in respect of such Class of Certificates will consist of the amount of interest accrued on the Component Notional Amount of such Class’ REMIC III Component from time to time. |
(5) | The Class X-F Certificates will not have a Class Principal Balance and will not entitle their Holders to receive distributions of principal. The Class X-F Certificates will evidence the ownership of one (1) REMIC regular interest, corresponding to the component of the notional balance of the Class X-F Certificates. The Class X-F Certificates will have a Class Notional Amount which will be equal to the Component Notional Amount of the REMIC III Component of such Class from time to time. As more specifically provided herein, interest in respect of such Class of Certificates will consist of the amount of interest accrued on the Component Notional Amount of such Class’ REMIC III Component from time to time. |
(6) | The Class X-G Certificates will not have a Class Principal Balance and will not entitle their Holders to receive distributions of principal. The Class X-G Certificates will evidence the ownership of one (1) REMIC regular interest, corresponding to the component of the notional balance of the Class X-G Certificates. The Class X-G Certificates will have a Class Notional Amount which will be equal to the Component Notional Amount of the REMIC III Component of such Class from time to time. As more specifically provided herein, interest in respect of such Class of Certificates will consist of the amount of interest accrued on the Component Notional Amount of such Class’ REMIC III Component from time to time. |
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(7) | The Class A-S, Class B and Class C Certificates are not regular interests in REMIC III but represent ownership of the Class A-S Percentage Interest, the Class B Percentage Interest and the Class C Percentage Interest, respectively, in the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest, respectively. The Class A-S-PEX Component, Class B-PEX Component and Class C-PEX Component are not regular interests in REMIC III but represent ownership of the Class A-S-PEX Percentage Interest, the Class B-PEX Percentage Interest and the Class C-PEX Percentage Interest, respectively, in the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest, respectively. The Class PEX Certificates are not regular interests in REMIC III but represent ownership of the Class PEX Components. |
(8) | The Class PEX Certificates will not have a Pass-Through Rate but will be entitled to receive the sum of the interest distributable on the Class PEX Components. |
(9) | The Class V Certificates will not have a Class Principal Balance and will not entitle their Holders to receive distributions of principal. The Class V Certificates will evidence the beneficial ownership of the assets of the portion of the Grantor Trust consisting of the Class V Specific Grantor Trust Assets. |
Grantor Trust
The Class A-S, Class B, Class C, Class PEX and Class V Certificates shall each represent undivided beneficial interests in the portion of the Grantor Trust consisting of the assets set forth opposite such Class in the following table, in each case as described herein. As provided herein, the Certificate Administrator shall not take any actions to cause the portions of the Trust Fund consisting of the Grantor Trust to fail (i) to maintain its status as a “grantor trust” under federal income tax law and (ii) to not be treated as part of any Trust REMIC Pool.
Class Designation |
Corresponding Grantor Trust Assets | |
Class A-S | Class A-S Specific Grantor Trust Assets | |
Class B | Class B Specific Grantor Trust Assets | |
Class C | Class C Specific Grantor Trust Assets | |
Class PEX | Class PEX Specific Grantor Trust Assets | |
Class V | Class V Specific Grantor Trust Assets |
Split Loan Structures
The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 1 on the Mortgage Loan Schedule (the “Patriots Park Mortgage Loan”) also secures two companion loans to the same Borrower, which consist of a promissory note designated note A-2 in the original principal balance of $94,070,000 and a promissory note designated note A-3 in the original principal balance of $26,000,000, which companion loans are pari passu in right of payment to the Patriots Park Mortgage Loan (the “Patriots Park Pari Passu Companion Loans” and, collectively with the Patriots Park Mortgage Loan, the “Patriots Park Loan Combination”). The Patriots Park Pari Passu Companion Loans and all amounts attributable thereto will not be assets of the Trust Fund, the REMIC Pools or the Grantor Trust and will be beneficially owned by the related Serviced Pari Passu Companion Loan Holder.
The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 2 on the Mortgage Loan Schedule (the “Eastgate One Phases I-VII & XII Mortgage Loan”) also secures a companion loan to the same Borrower, which consists of a promissory note designated note A-1 in the original principal balance of $75,000,000 and which is pari passu in right of payment to the Eastgate One Phases I-VII & XII Mortgage Loan (the “Eastgate One Phases I-VII
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& XII Pari Passu Companion Loan” and, collectively with the Eastgate One Phases I-VII & XII Mortgage Loan, the “Eastgate One Phases I-VII & XII Loan Combination”). The Eastgate One Phases I-VII & XII Pari Passu Companion Loan and all amounts attributable thereto will not be assets of the Trust Fund, the REMIC Pools or the Grantor Trust and will be beneficially owned by the holder of the Eastgate One Phases I-VII & XII Pari Passu Companion Loan.
The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 3 on the Mortgage Loan Schedule (the “Stanford Research Park Mortgage Loan”) also secures a companion loan to the same Borrower, which consists of a promissory note designated note A-2 in the original principal balance of $36,500,000 and which is pari passu in right of payment to the Stanford Research Park Mortgage Loan (the “Stanford Research Park Pari Passu Companion Loan” and, collectively with the Stanford Research Park Mortgage Loan, the “Stanford Research Park Loan Combination”). The Stanford Research Park Pari Passu Companion Loan and all amounts attributable thereto will not be assets of the Trust Fund, the REMIC Pools or the Grantor Trust and will be beneficially owned by the related Serviced Pari Passu Companion Loan Holder.
The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 5 on the Mortgage Loan Schedule (the “Eastgate Two Phases VIII-X Mortgage Loan”) also secures a companion loan to the same Borrower, which consists of a promissory note designated note A-1 in the original principal balance of $60,000,000 and which is pari passu in right of payment to the Eastgate Two Phases VIII-X Mortgage Loan (the “Eastgate Two Phases VIII-X Pari Passu Companion Loan” and, collectively with the Eastgate Two Phases VIII-X Mortgage Loan, the “Eastgate Two Phases VIII-X Loan Combination”). The Eastgate Two Phases VIII-X Pari Passu Companion Loan and all amounts attributable thereto will not be assets of the Trust Fund, the REMIC Pools or the Grantor Trust and will be beneficially owned by the holder of the Eastgate Two Phases VIII-X Pari Passu Companion Loan.
The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 6 on the Mortgage Loan Schedule (the “000 Xxxx 00xx Xxxxxx Mortgage Loan”) also secures three companion loans to the same Borrower, which consist of a promissory note designated note A-1 in the original principal balance of $45,000,000 (the “000 Xxxx 00xx Xxxxxx Controlling Pari Passu Companion Loan”), a promissory note designated note A-2 in the original principal balance of $60,000,000 and a promissory note designated note A-3, in the original principal balance of 40,000,000 (together, the “000 Xxxx 00xx Xxxxxx Xxx-Xxxxxxxxxxx Pari Passu Companion Loans” and together with the 000 Xxxx 00xx Xxxxxx Controlling Pari Passu Companion Loan, the “000 Xxxx 00xx Xxxxxx Pari Passu Companion Loans”). The 000 Xxxx 00xx Xxxxxx Pari Passu Companion Loans are pari passu in right of payment to the 000 Xxxx 00xx Xxxxxx Mortgage Loan. The 000 Xxxx 00xx Xxxxxx Pari Passu Companion Loans and the 000 Xxxx 00xx Xxxxxx Mortgage Loan are collectively referred to as the “000 Xxxx 00xx Xxxxxx Loan Combination”). The 000 Xxxx 00xx Xxxxxx Pari Passu Companion Loans and all amounts attributable thereto will not be assets of the Trust Fund, the REMIC Pools or the Grantor Trust and will be beneficially owned by the related Pari Passu Companion Loan Holder.
The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 7 on the Mortgage Loan Schedule (the “760 & 000 Xxxxxxxxxxx Xxxxxx Mortgage Loan”) also secures two companion loans to the same Borrower, which consist of a promissory note
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designated note A-2 in the original principal balance of $33,000,000 and a promissory note designated note A-3, in the original principal balance of 32,000,000, which companion loans are pari passu in right of payment to the 760 & 000 Xxxxxxxxxxx Xxxxxx Mortgage Loan (the “760 & 800 Westchester Avenue Pari Passu Companion Loans” and, collectively with the 760 & 000 Xxxxxxxxxxx Xxxxxx Mortgage Loan, the “760 & 000 Xxxxxxxxxxx Xxxxxx Loan Combination”). Xxx 000 & 000 Xxxxxxxxxxx Xxxxxx Xxxx Xxxxx Companion Loans and all amounts attributable thereto will not be assets of the Trust Fund, the REMIC Pools or the Grantor Trust and will be beneficially owned by the related Serviced Pari Passu Companion Loan Holder.
The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 13 on the Mortgage Loan Schedule (the “Hotel Xxxxx Mortgage Loan”) also secures a companion loan to the same Borrower, which consists of a promissory note designated note A-2 in the original principal balance of $14,000,000 and which is pari passu in right of payment to the Hotel Xxxxx Mortgage Loan (the “Hotel Xxxxx Xxxx Passu Companion Loan” and, collectively with the Hotel Xxxxx Mortgage Loan, the “Hotel Xxxxx Loan Combination”). The Hotel Xxxxx Xxxx Passu Companion Loan and all amounts attributable thereto will not be assets of the Trust Fund, the REMIC Pools or the Grantor Trust and will be beneficially owned by the related Serviced Pari Passu Companion Loan Holder.
The Mortgaged Property that secures the Mortgage Loan identified as Loan No. 24 on the Mortgage Loan Schedule (the “Gateway Portfolio Mortgage Loan”) also secures a companion loan to the same Borrower, which consists of a promissory note designated note A-1 in the original principal balance of $24,000,000 and which is pari passu in right of payment to the Gateway Portfolio Mortgage Loan (the “Gateway Portfolio Pari Passu Companion Loan” and, collectively with the Gateway Portfolio Mortgage Loan, the “Gateway Portfolio Loan Combination”). The Gateway Portfolio Pari Passu Companion Loan and all amounts attributable thereto will not be assets of the Trust Fund, the REMIC Pools or the Grantor Trust and will be beneficially owned by the holder of the Gateway Portfolio Pari Passu Companion Loan.
Each of the Patriots Park Loan Combination, the Stanford Research Park Loan Combination, the 760 & 000 Xxxxxxxxxxx Xxxxxx Loan Combination and the Hotel Xxxxx Loan Combination will be serviced pursuant to (i) this Agreement and (ii) the related Intercreditor Agreement. The 000 Xxxx 00xx Xxxxxx Loan Combination will be serviced pursuant to (i) the related Non-Trust Pooling and Servicing Agreement and (ii) the related Intercreditor Agreement. Each of the Eastgate One Phases I-VII & XII Loan Combination, the Eastgate Two Phases VIII-X Loan Combination and the Gateway Portfolio Loan Combination will initially be serviced pursuant to (i) this Agreement and (ii) the related Intercreditor Agreement. From and after the securitization date of the related Pari Passu Companion Loan, each of the Eastgate One Phases I-VII & XII Loan Combination, the Eastgate Two Phases VIII-X Loan Combination and the Gateway Portfolio Loan Combination will be serviced pursuant to (i) the related Non-Trust Pooling and Servicing Agreement and (ii) the related Intercreditor Agreement.
Capitalized terms used but not otherwise defined in this Preliminary Statement have the respective meanings assigned thereto in Section 1.01 of this Agreement.
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In consideration of the mutual agreements herein contained, the Depositor, the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Tax Administrator and the Trustee hereby agree as follows:
ARTICLE
I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
Section 1.01 Defined Terms. Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the meanings specified in this Section 1.01, subject to modification in accordance with Section 1.04.
“30/360 Basis”: The accrual of interest calculated on the basis of a 360-day year consisting of twelve 30-day months.
“30/360 Mortgage Loan”: A Mortgage Loan that accrues interest on a 30/360 Basis.
“000 Xxxx 00xx Xxxxxx Controlling Pari Passu Companion Loan”: As defined in the Preliminary Statement.
“000 Xxxx 00xx Xxxxxx Loan Combination”: As defined in the Preliminary Statement.
“000 Xxxx 00xx Xxxxxx Mortgage Loan”: As defined in the Preliminary Statement.
“000 Xxxx 00xx Xxxxxx Xxx-Xxxxxxxxxxx Pari Passu Companion Loan”: As defined in the Preliminary Statement.
“100 West 57th Street Pari Passu Companion Loans”: As defined in the Preliminary Statement.
“760 & 000 Xxxxxxxxxxx Xxxxxx Loan Combination”: As defined in the Preliminary Statement.
“760 & 000 Xxxxxxxxxxx Xxxxxx Mortgage Loan”: As defined in the Preliminary Statement.
“760 & 800 Westchester Avenue Pari Passu Companion Loans”: As defined in the Preliminary Statement.
“Acceptable Insurance Default”: As defined in Section 3.07(a).
“Accrued Certificate Interest”: The interest accrued from time to time with respect to any Class of Regular Certificates and the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest, the amount of which interest shall equal: (a) in the case of any Class of Principal Balance Certificates (other than the Class A-S, Class B, Class C and Class
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PEX Certificates) or the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest, as applicable, for any Interest Accrual Period, one-twelfth of the product of (i) the Pass-Through Rate applicable to such Class of Principal Balance Certificates or the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest, as applicable, for such Interest Accrual Period, multiplied by (ii) the Class Principal Balance of such Class of Principal Balance Certificates or the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest, as applicable, outstanding immediately prior to the related Distribution Date; and (b) in the case of any Class of Interest Only Certificates for any Interest Accrual Period, the aggregate amount of Accrued Component Interest for all of such Class’ REMIC III Components for such Interest Accrual Period.
“Accrued Component Interest”: The interest accrued from time to time with respect to any REMIC III Component of any Class of Interest Only Certificates, the amount of which interest shall equal, for any Interest Accrual Period, one-twelfth of the product of (i)(A) in the case of each REMIC III Component of the Class X-A Certificates, the Class X-A Strip Rate applicable to such REMIC III Component for such Interest Accrual Period, (B) in the case of each REMIC III Component of the Class X-B Certificates, the Class X-B Strip Rate applicable to such REMIC III Component for such Interest Accrual Period, (C) in the case of the REMIC III Component of the Class X-E Certificates, the Class X-E Strip Rate applicable to such REMIC III Component for such Interest Accrual Period, (D) in the case of the REMIC III Component of the Class X-F Certificates, the Class X-F Strip Rate applicable to such REMIC III Component for such Interest Accrual Period or (E) in the case of the REMIC III Component of the Class X-G Certificates, the Class X-G Strip Rate applicable to such REMIC III Component for such Interest Accrual Period multiplied by (ii) the Component Notional Amount of such REMIC III Component outstanding immediately prior to the related Distribution Date.
“Actual/360 Basis”: The accrual of interest calculated on the basis of the actual number of days elapsed during any calendar month (or other applicable recurring accrual period) in a year assumed to consist of 360 days.
“Actual/360 Mortgage Loan”: A Mortgage Loan that accrues interest on an Actual/360 Basis.
“Additional Collateral”: Any non-real property collateral (including any Letters of Credit or Reserve Funds) pledged and/or delivered by or on behalf of the related Borrower and held by the related Mortgagee to secure payment on any Mortgage Loan which, in the case of any Loan Combination, also secures payment on the related Pari Passu Companion Loan.
“Additional Form 10-D Disclosure”: As defined in Section 11.07.
“Additional Form 10-K Disclosure”: As defined in Section 11.08.
“Additional Master Servicing Compensation”: As defined in Section 3.11(b).
“Additional Servicer”: Each Affiliate of the Master Servicer, any Mortgage Loan Seller, the Depositor, any Non-Trust Master Servicer, any Non-Trust Special Servicer or any of the Underwriters, that Services any of the Mortgage Loans and each Person, other than the Special Servicer, who is not an Affiliate of the Master Servicer, any Mortgage Loan Seller, the
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Depositor or any of the Underwriters and who Services 10% or more of the Mortgage Loans (based on their Stated Principal Balance). For clarification purposes, the Certificate Administrator is an Additional Servicer and the Trustee is not an Additional Servicer. For further clarification purposes, the Special Servicer and the Trust Advisor are not Additional Servicers, it being acknowledged that the Special Servicer and the Trust Advisor constitute Reporting Servicers regardless of the number or percentage of Mortgage Loans serviced on any particular date.
“Additional Special Servicing Compensation”: As defined in Section 3.11(d).
“Additional Trust Fund Expense”: Any expense of the Trust Fund that (i) arises out of a default on a Mortgage Loan or a Serviced Pari Passu Companion Loan or an otherwise unanticipated event, (ii) is not included in the calculation of a Realized Loss, (iii) is not covered by a Servicing Advance or a corresponding collection from the related Borrower, and (iv) is not covered by Default Charges collected on the Mortgage Loans to the extent provided herein.
“Additional Yield Amount”: As defined in Section 4.01(c).
“Adjusted Actual/360 Accrued Interest Amount”: As defined in Section 2.11(f).
“Administered REO Property”: Any REO Property other than any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan.
“Administrative Fee Rate”: With respect to each Mortgage Loan, the sum of (i) the Certificate Administrator Fee Rate, (ii) the CREFC® License Fee Rate, (iii) the Trust Advisor Ongoing Fee Rate (except with respect to the Eastgate One Phases I-VII & XII Mortgage Loan, the Eastgate Two Phases VIII-X Mortgage Loan, the 000 Xxxx 00xx Xxxxxx Mortgage Loan and the Gateway Portfolio Mortgage Loan), (iv) the applicable Master Servicing Fee Rate; and (v) in the case of each Pari Passu Mortgage Loan, a rate per annum equal to the applicable Pari Passu Primary Servicing Fee Rate.
“Advance”: Any P&I Advance or Servicing Advance.
“Advance Interest”: The interest accrued on any Advance (other than any Unliquidated Advance) at the Reimbursement Rate, which is payable to the party hereto that made that Advance, all in accordance with Section 3.11(g) or Section 4.03, as applicable.
“Adverse Grantor Trust Event”: Either: (i) any impairment of the status of the Grantor Trust Pool as a Grantor Trust; or (ii) the imposition of a tax upon the Grantor Trust Pool or any of its assets or transactions.
“Adverse Rating Event”: With respect to any Class of Rated Certificates and any Rating Agency that has assigned a rating thereto, as of any date of determination, the qualification, downgrade or withdrawal of the rating then assigned to such Class of Rated Certificates by such Rating Agency (or the placement of such Class of Rated Certificates on “negative credit watch” status in contemplation of any such action with respect thereto).
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“Adverse REMIC Event”: Either: (i) any impairment of the status of any REMIC Pool as a REMIC, including (insofar as it relates to a proposed modification, waiver or amendment of any term of a Mortgage Loan) any impairment that could result by virtue of the exercise of a “unilateral option” (within the meaning of Treasury Regulations Section 1.1001-3(c)(3)) of the Borrower; or (ii) except as permitted by Section 3.17(a), the imposition of a tax upon any REMIC Pool or any of its assets or transactions (including the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code, the tax on contributions under Section 860G(d) of the Code and the tax on income from foreclosure property under Section 860G(c) of the Code).
“Affected Loan(s)”: As defined in Section 2.03(b)(A).
“Affected Party”: As defined in Section 7.01(b).
“Affected Reporting Party”: As defined in Section 11.15.
“Affiliate”: With respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agreement”: This Pooling and Servicing Agreement, as it may be amended, modified, supplemented or restated following the Closing Date.
“Anticipated Repayment Date”: With respect to any ARD Mortgage Loan, the date specified in the related Mortgage Note, as of which Post-ARD Additional Interest shall begin to accrue on such Mortgage Loan, which date is prior to the Stated Maturity Date for such Mortgage Loan.
“Applicable Banking Law”: As defined in Section 8.13.
“Applicable State Law”: For purposes of Article X, the Applicable State Law shall be (1) the laws of the State of New York; (2) to the extent brought to the attention of the Tax Administrator (by either (i) an Opinion of Counsel delivered to it or (ii) written notice from the appropriate taxing authority as to the applicability of such state law), (a) the laws of the states in which the Corporate Trust Offices of the Certificate Administrator and the Trustee and the Primary Servicing Offices of the Master Servicer and the Special Servicer are located and (b) the laws of the states in which any Mortgage Loan Documents are held and/or any REO Properties are located; and (3) such other state or local law as to which the Tax Administrator has actual knowledge of applicability.
“Appraisal”: With respect to any Mortgaged Property or REO Property as to which an appraisal is required to be performed pursuant to the terms of this Agreement, a narrative appraisal complying with USPAP (or, in the case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal Balance as of the date of such appraisal of less than $2,000,000, at the Special Servicer’s option, either a limited appraisal and a summary report or
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an internal valuation prepared by the Special Servicer) that (i) indicates the “market value” of the subject property (within the meaning of 12 C.F.R. § 225.62(g)) and (ii) is conducted by a Qualified Appraiser (except that, in the case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal Balance as of the date of such appraisal of less than $2,000,000, the appraiser may be an employee of the Special Servicer, which employee need not be a Qualified Appraiser but shall have experience in commercial and/or multifamily properties, as the case may be, and possess sufficient knowledge to value such a property).
“Appraisal-Reduced Interest Amount”: With respect to any Mortgage Loan or REO Mortgage Loan, the amount of any reduction in any P&I Advance that occurs as result of Appraisal Reduction Amounts pursuant to the proviso to Section 4.03(b).
“Appraisal Reduction Amount”: With respect to any Serviced Mortgage Loan (or, as described in the fourth-to-last paragraph of this definition, for any Mortgage Loan relating to a Serviced Loan Combination) that is a Required Appraisal Loan, an amount (calculated initially as of the Determination Date immediately following the later of the date on which the subject Mortgage Loan became a Required Appraisal Loan and the date on which the applicable Appraisal was obtained) equal to the excess, if any, of:
(a) the sum of, without duplication, (i) the Stated Principal Balance of such Required Appraisal Loan, (ii) to the extent not previously advanced by or on behalf of the Master Servicer or the Trustee, all unpaid interest on such Required Appraisal Loan through the most recent Due Date prior to the date of determination (exclusive of any portion thereof that represents Default Interest and/or Post-ARD Additional Interest), (iii) all accrued and unpaid Special Servicing Fees in respect of such Required Appraisal Loan, (iv) all related unreimbursed Advances (together with Unliquidated Advances) made by or on behalf of (plus all accrued and unpaid interest on such Advances (other than Unliquidated Advances) payable to) the Master Servicer, the Special Servicer and/or the Trustee with respect to such Required Appraisal Loan, (v) any other outstanding Additional Trust Fund Expenses (other than Trust Advisor Expenses) with respect to such Required Appraisal Loan, and (vi) all currently due and unpaid real estate taxes and assessments, insurance premiums and, if applicable, ground rents, and any unfunded improvement or other applicable reserves, in respect of the related Mortgaged Property or REO Property, as the case may be (in each case, net of any amounts escrowed with the Master Servicer or the Special Servicer for such items); over
(b) an amount equal to the sum of: (a) the excess, if any, of (i) 90% of the Appraised Value of the related Mortgaged Property (or REO Property) as determined by the most recent Appraisal or any letter update of such Appraisal, over (ii) the amount of any obligations secured by liens on such Mortgaged Property (or REO Property) that are prior to the lien of the related Required Appraisal Loan; plus (b) the amount of any Escrow Payments and/or Reserve Funds held by the Master Servicer or the Special Servicer with respect to such Required Appraisal Loan, the related Mortgaged Property or any related REO Property that (i) are not being held in respect of any real estate taxes and assessments, insurance premiums or, if applicable, ground rents, (ii) are not otherwise scheduled to be applied or utilized (except to pay debt service on such Required Appraisal Loan) within the twelve-month period following the date of
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determination and (iii) may be applied toward the reduction of the principal balance of such Required Appraisal Loan; plus (c) the amount of any Letter of Credit constituting additional security for such Required Appraisal Loan and that may be applied towards the reduction of the principal balance of such Required Appraisal Loan.
Notwithstanding the foregoing, if (i) any Serviced Mortgage Loan or Serviced Loan Combination becomes a Required Appraisal Loan, (ii) either (A) no Appraisal or update thereof has been obtained or conducted, as applicable, in accordance with Section 3.19(a), with respect to the related Mortgaged Property or REO Property, as the case may be, during the nine-month period prior to the date such Mortgage Loan or Serviced Loan Combination became a Required Appraisal Loan or (B) there shall have occurred since the date of the most recent Appraisal or update thereof a material change in the circumstances surrounding the related Mortgaged Property or REO Property, as the case may be, that would, in the Special Servicer’s reasonable judgment, materially affect the value of the related Mortgaged Property or REO Property, as the case may be, and (iii) no new Appraisal is obtained or conducted, as applicable, in accordance with Section 3.19(a), within sixty (60) days after such Mortgage Loan or Serviced Loan Combination became a Required Appraisal Loan, then (x) until such new Appraisal is obtained or conducted, as applicable, in accordance with Section 3.19(a), the Appraisal Reduction Amount shall equal 25% of the Stated Principal Balance of such Required Appraisal Loan, and (y) upon receipt or performance, as applicable, in accordance with Section 3.19(a), of such Appraisal or update thereof by the Special Servicer, the Appraisal Reduction Amount for such Required Appraisal Loan shall be recalculated in accordance with the preceding sentence of this definition.
In connection with the foregoing, each Cross-Collateralized Mortgage Loan that is part of a single Cross-Collateralized Group shall be treated separately (in each case as a single Mortgage Loan without regard to the cross-collateralization and cross-default provisions) for purposes of calculating an Appraisal Reduction Amount.
Also notwithstanding the foregoing, as of any date of determination, in the case of any Serviced Loan Combination, (a) any Appraisal Reduction Amounts will be calculated with respect to the entirety of such Serviced Loan Combination as if it were a single Mortgage Loan and allocated to the related Serviced Pari Passu Companion Loan(s) and the related Mortgage Loan on a pro rata and pari passu basis in accordance with, the respective outstanding principal balances of such Serviced Pari Passu Companion Loan(s) and the related Mortgage Loan, and (b) the resulting portion of such Appraisal Reduction Amount that is so allocated to the related Mortgage Loan shall be the “Appraisal Reduction Amount” of that Mortgage Loan for purposes of P&I Advances and the determination of whether a Subordinate Control Period is in effect under this Agreement.
Also notwithstanding the foregoing, for purposes of determining whether a Subordinate Control Period is in effect, the determination of Appraisal Reduction Amounts will be subject to the provisions and procedures set forth under Section 3.19.
An Appraisal Reduction Amount with respect to any Serviced Mortgage Loan or Serviced Loan Combination will be reduced to zero as of the date on which all Servicing Transfer Events have ceased to exist with respect to the related Serviced Mortgage Loan or
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Serviced Loan Combination and at least ninety (90) days have passed following the occurrence of the most recent Appraisal Trigger Event. No Appraisal Reduction Amount will exist as to any Serviced Mortgage Loan after it has been paid in full or it (or the REO Property) has been liquidated, repurchased or otherwise disposed of.
Notwithstanding the foregoing, with respect to any Non-Trust-Serviced Pooled Mortgage Loan, the Appraisal Reduction Amount shall be the “Appraisal Reduction Amount” calculated pursuant to the related Non-Trust Pooling and Servicing Agreement and the parties hereto shall be entitled to rely on such calculations as reported to them by the Non-Trust Master Servicer. By their acceptance of their Certificates, the Certificateholders will be deemed to have acknowledged that any Non-Trust Pooling and Servicing Agreement and any Intercreditor Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan, taken together, provide that any such “Appraisal Reduction Amount” shall be calculated by the related Non-Trust Special Servicer under the related Non-Trust Pooling and Servicing Agreement.
“Appraisal Trigger Event”: As defined in Section 3.19(a).
“Appraised Value”: With respect to each Mortgaged Property or REO Property, the appraised value thereof based upon the most recent Appraisal obtained or conducted, as appropriate, pursuant to this Agreement.
“ARD Mortgage Loan”: A Mortgage Loan that provides for the accrual of Post-ARD Additional Interest thereon if such Mortgage Loan is not paid in full on or prior to its Anticipated Repayment Date.
“Asset Status Report”: As defined in Section 3.24(a).
“Assignment of Leases”: With respect to any Mortgaged Property, any assignment of leases, rents and profits or similar document or instrument executed by the related Borrower in connection with the origination of the related Mortgage Loan(s) or Loan Combination, as applicable, as such assignment may be amended, modified, renewed or extended through the date hereof and from time to time hereafter.
“Assumed Monthly Payment”: With respect to (a) any Mortgage Loan that is a Balloon Mortgage Loan delinquent in respect of its Balloon Payment beyond the Determination Date immediately following its scheduled maturity date (as such date may be extended in connection with a bankruptcy, insolvency or similar proceeding involving the related Borrower or by reason of a modification, waiver or amendment granted or agreed to by the Master Servicer or the Special Servicer), for that scheduled maturity date and for each subsequent Due Date as of which such Mortgage Loan remains outstanding and part of the Trust Fund, the scheduled monthly payment of principal and/or interest deemed to be due with respect to such Mortgage Loan on such Due Date equal to the amount (exclusive of Default Interest and any Post-ARD Additional Interest) that would have been due in respect thereof on such Due Date if such Mortgage Loan had been required to continue to accrue interest in accordance with its terms, and to pay principal in accordance with the amortization schedule (if any), in effect immediately prior to, and without regard to the occurrence of, such maturity date; and (b) any REO Mortgage Loan, for any Due Date as of which the related REO Property (or, in the case of any REO
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Mortgage Loan that is a successor to any Mortgage Loan in a Loan Combination, any interest in the related REO Property) remains part of the Trust Fund, the scheduled monthly payment of principal and/or interest deemed to be due in respect thereof on such Due Date equal to the Monthly Payment (or, in the case of a Balloon Mortgage Loan described in clause (a) of this definition, the Assumed Monthly Payment) that was due (or deemed due) with respect to the related Mortgage Loan on the last Due Date prior to its becoming an REO Mortgage Loan.
“Assumption Application Fees”: With respect to any Serviced Mortgage Loan or Serviced Loan Combination, any and all assumption application fees for transactions effected under Section 3.08 of this Agreement actually collected from the related Borrower and not prohibited from being charged by the lender under the related Mortgage Loan Documents, with respect to any application submitted to the Master Servicer or the Special Servicer for a proposed assumption or substitution transaction or proposed transfer of an interest in such Borrower.
“Assumption Fees”: With respect to any Serviced Mortgage Loan or Serviced Loan Combination, any and all assumption fees for transactions effected under Section 3.08 of this Agreement actually collected from the related Borrower and not prohibited from being charged by the lender under the related Mortgage Loan Documents, with respect to any assumption or substitution agreement entered into by the Master Servicer or the Special Servicer on behalf of the Trust Fund pursuant to Section 3.08 of this Agreement or paid by the related Borrower with respect to any transfer of an interest in such Borrower pursuant to Section 3.08 of this Agreement.
“ASTM”: ASTM International (originally known as The American Society for Testing and Materials).
“Authenticating Agent”: Any authenticating agent appointed pursuant to Section 5.07 (or, in the absence of any such appointment, the Certificate Administrator).
“Available Distribution Amount”: With respect to any Distribution Date, an amount equal to (a) the sum of (i) all amounts on deposit in the Distribution Account as of 11:00 a.m., New York City time, on such Distribution Date, (ii) to the extent not included in the amount described in clause (a)(i) of this definition, any P&I Advances and/or Compensating Interest Payments that were made hereunder in respect of such Distribution Date, (iii) to the extent not included in the amount described in clause (a)(i) of this definition, the aggregate amount transferred (pursuant to Section 3.05(d)) from the Excess Liquidation Proceeds Account to the Distribution Account in respect of such Distribution Date and (iv) to the extent not included in the amount described in clause (a)(i) of this definition, if such Distribution Date occurs during the month of March of any year (or if the Final Distribution Date occurs during the month of January (except in a leap year) or February of any year, during such January or February), the aggregate of the Interest Reserve Amounts with respect to the Interest Reserve Loans transferred from the Interest Reserve Account to the Distribution Account during such month of March (or if the Final Distribution Date occurs during the month of January (except in a leap year) or February of any year, during such January or February) for distribution on such Distribution Date, net of (b) any portion of the amounts described in clause (a) of this definition that represents one or more of the following: (i) collected Monthly Payments that are due on a Due Date following the end of the related Collection Period, (ii) any payments of principal
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(including Principal Prepayments) and interest, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds Received by the Trust after the end of the related Collection Period, (iii) any Prepayment Premiums, Yield Maintenance Charges and/or Post-ARD Additional Interest, (iv) any amounts payable or reimbursable to any Person from the Distribution Account pursuant to clauses (iii) through (viii) of Section 3.05(b), (v) if such Distribution Date occurs during the month of February of any year or during the month of January of any year that is not a leap year, the aggregate of the Interest Reserve Amounts with respect to the Interest Reserve Loans to be withdrawn (pursuant to Section 3.04(c) and Section 3.05(b)(ii)) from the Distribution Account and deposited into the Interest Reserve Account during such month of February or such month of January, as the case may be, and held for future distribution, and (vi) any amounts deposited in the Distribution Account in error; provided that the Available Distribution Amount for the Final Distribution Date shall be calculated without regard to clauses (b)(i), (b)(ii) and (b)(v) of this definition.
“Balloon Mortgage Loan”: Any Mortgage Loan or Loan Combination that by its original terms or by virtue of any modification entered into as of the Closing Date (or, in the case of a Replacement Mortgage Loan, as of the related date of substitution) provides for an amortization schedule extending beyond its Stated Maturity Date and as to which, in accordance with such terms, the Monthly Payment due on its Stated Maturity Date is at least 5% of the original principal balance of such Mortgage Loan or Loan Combination.
“Balloon Payment”: With respect to any Balloon Mortgage Loan as of any date of determination, the Monthly Payment payable on the Stated Maturity Date of such Mortgage Loan.
“Bankruptcy Code”: The federal Bankruptcy Code, as amended from time to time (Title 11 of the United States Code).
“Barclays”: Barclays Capital Inc., or its successor-in-interest.
“Base Interest Fraction”: As defined in Section 4.01(c).
“Base Prospectus”: That certain prospectus dated January 28, 2015, relating to trust funds established by the Depositor and publicly offered mortgage pass-through certificates evidencing interests therein.
“Book-Entry Certificate”: Any Certificate registered in the name of the Depository or its nominee.
“Book-Entry Non-Registered Certificate”: Any Non-Registered Certificate that constitutes a Book-Entry Certificate.
“Borrower” or “Mortgagor”: The obligor or obligors on a Mortgage Note, and may also be referred to as the mortgagor.
“Borrower Party”: A Borrower, a manager of a Mortgaged Property, an Affiliate of any Borrower or manager of a Mortgaged Property, or an agent, principal, partner, member,
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joint venturer, limited partner, employee, representative, director, trustee, advisor or investor in or of an Affiliate of any Borrower.
“Breach”: As defined in Section 2.03(a).
“Business Day”: Any day other than a Saturday, a Sunday or a day on which banking institutions in California, Delaware, Georgia, Maryland, Minnesota, New York, North Carolina, Texas or any of the jurisdictions in which the respective Primary Servicing Offices of the Master Servicer or the Special Servicer or the Corporate Trust Offices of the Certificate Administrator or the Trustee are located, or the New York Stock Exchange or the Federal Reserve System of the United States of America, are authorized or obligated by law or executive order to remain closed.
“CERCLA”: The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.
“Certificate”: Any one of the Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1, as executed by the Certificate Administrator and authenticated and delivered hereunder by the Certificate Registrar.
“Certificate Administrator”: Xxxxx Fargo Bank, National Association, in its capacity as certificate administrator hereunder, or any successor certificate administrator appointed as herein provided. Xxxxx Fargo Bank, National Association may perform its Certificate Administrator role through its Corporate Trust Services division.
“Certificate Administrator Fee”: With respect to each Mortgage Loan and the beneficial interest of the Trust Fund in each REO Mortgage Loan, the fee designated as such and payable to the Certificate Administrator pursuant to Section 8.05(a). The Certificate Administrator Fee includes the Tax Administrator Fee and the Trustee Fee, each of which shall be paid by the Certificate Administrator as provided herein.
“Certificate Administrator Fee Rate”: 0.0048% per annum.
“Certificate Administrator’s Website”: The internet website of the Certificate Administrator, initially located at xxx.xxxxxxx.xxx.
“Certificate Factor”: With respect to any Class of Interest Only Certificates or Principal Balance Certificates, any Class PEX Component or the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest, as of any date of determination, a fraction, expressed as a decimal carried to eight places, the numerator of which is the related Class Principal Balance or Class Notional Amount, as the case may be, then outstanding, and the denominator of which is the related Class Principal Balance or Class Notional Amount, as the case may be, outstanding as of the Closing Date (in the case of any Class of Exchangeable Certificates or Class PEX Component, as the same may be adjusted in connection with exchanges pursuant to Section 5.09).
“Certificate Notional Amount”: With respect to any Interest Only Certificate, as of any date of determination, the then notional principal amount on which such Certificate
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accrues interest, equal to the product of (a) the then Certificate Factor for the Class of Interest Only Certificates to which such Certificate belongs, multiplied by (b) the amount specified on the face of such Certificate as the initial Certificate Notional Amount thereof.
“Certificate Owner”: With respect to any Book-Entry Certificate, the Person who is the beneficial owner of such Certificate as reflected on the books of the Depository or on the books of a Depository Participant or on the books of an indirect participating brokerage firm for which a Depository Participant acts as agent.
“Certificate Principal Balance”: With respect to any Principal Balance Certificate, any Class PEX Component and the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest, as of any date of determination, the then-outstanding principal amount of such Certificate, Class PEX Component or REMIC III Regular Interest, as applicable, equal to the product of (a) the then Certificate Factor for the Class of Principal Balance Certificates to which such Certificate belongs, the Class PEX Component or the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest, multiplied by (b) the amount specified on the face of such Certificate as the initial Certificate Principal Balance thereof. The aggregate Certificate Principal Balance of the Class A-S Certificates and the Class A-S-PEX Component shall be equal at all times to the Certificate Principal Balance of the Class A-S Regular Interest. The aggregate Certificate Principal Balance of the Class B Certificates and the Class B-PEX Component shall be equal at all times to the Certificate Principal Balance of the Class B Regular Interest. The aggregate Certificate Principal Balance of the Class C Certificates and the Class C-PEX Component shall be equal at all times to the Certificate Principal Balance of the Class C Regular Interest. The original and outstanding Certificate Principal Balances of the Class A-S, Class B, Class C and Class PEX Certificates and the Class PEX Components are subject to adjustment in connection with any exchange of Class A-S, Class B and Class C Certificates for Class PEX Certificates, or vice versa, in each case in accordance with Section 5.09 hereof.
“Certificate Register” and “Certificate Registrar”: The register maintained and the registrar appointed pursuant to Section 5.02.
“Certificateholder” or “Holder”: The Person in whose name a Certificate is registered in the Certificate Register, provided that: (i) no Disqualified Organization, Disqualified Partnership, or Non-United States Tax Person shall be a “Holder” of, or a “Certificateholder” with respect to, a Class R Certificate for any purpose hereof; and (ii) solely for purposes of giving any consent, approval, direction or waiver pursuant to this Agreement that specifically relates to the rights, duties and/or obligations hereunder of any of the Depositor, the Master Servicer, the Special Servicer, the Tax Administrator, the Certificate Administrator or the Trustee in its respective capacity as such (other than any consent, approval or waiver contemplated by Section 3.24), any Certificate registered in the name of such party or in the name of any Affiliate thereof shall be deemed not to be outstanding, and the Voting Rights to which it is entitled shall not be taken into account in determining whether the requisite percentage of Voting Rights necessary to effect any such consent, approval or waiver that specifically relates to such party has been obtained. The Certificate Registrar shall be entitled to request and conclusively rely upon a certificate of the Depositor, the Master Servicer or the Special Servicer in determining whether a Certificate is registered in the name of an Affiliate of
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such Person. All references herein to “Certificateholders” or “Holders” shall reflect the rights of Certificate Owners only insofar as they may indirectly exercise such rights through the Depository and the Depository Participants (except as otherwise specified herein), it being herein acknowledged and agreed that the parties hereto shall be required to recognize as a “Certificateholder” or “Holder” only the Person in whose name a Certificate is registered in the Certificate Register. Notwithstanding any contrary provision of this definition, in connection with the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest, the term “Certificateholder” or “Holder” shall mean the Trustee as the holder of the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest, as applicable.
“Certification Parties”: As defined in Section 11.09.
“Certifying Person”: As defined in Section 11.09.
“Certifying Servicer”: As defined in Section 11.12.
“Class”: Collectively, all of the Certificates bearing the same alphabetic or alphanumeric Class Designation and having the same payment terms, or any of the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest, in each case as the context may require.
“Class A Certificates”: The Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class A-5 and Class A-SB Certificates.
“Class A-1 Certificate”: Any one of the Certificates with a “Class A-1” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing a portion of a class of “regular interests” in REMIC III for purposes of the REMIC Provisions.
“Class A-2 Certificate”: Any one of the Certificates with a “Class A-2” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing a portion of a class of “regular interests” in REMIC III for purposes of the REMIC Provisions.
“Class A-3 Certificate”: Any one of the Certificates with a “Class A-3” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing a portion of a class of “regular interests” in REMIC III for purposes of the REMIC Provisions.
“Class A-4 Certificate”: Any one of the Certificates with a “Class A-4” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing a portion of a class of “regular interests” in REMIC III for purposes of the REMIC Provisions.
“Class A-5 Certificate”: Any one of the Certificates with a “Class A-5” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing a portion of a class of “regular interests” in REMIC III for purposes of the REMIC Provisions.
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“Class A-S Certificate”: Any one of the Certificates with a “Class A-S” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing an undivided beneficial interest in the portion of the Grantor Trust Pool consisting of the Class A-S Specific Grantor Trust Assets and the proceeds thereof.
“Class A-S Percentage Interest”: As of any date of determination, with respect to the Class A-S Certificates, a percentage interest equal to a fraction, the numerator of which is the Class Principal Balance of the Class A-S Certificates on such date, and the denominator of which is the Class Principal Balance of the Class A-S Regular Interest on such date.
“Class A-S Regular Interest”: The uncertificated interest corresponding to the Class A-S Certificates and the Class A-S-PEX Component and evidencing a “regular interest” in REMIC III for purposes of the REMIC Provisions.
“Class A-S Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class A-S Percentage Interest of the Class A-S Regular Interest.
“Class A-S-PEX Component”: One of the three components of the Class PEX Certificates, which component evidences an undivided beneficial interest in the portion of the Grantor Trust Pool consisting of the Class A-S-PEX Percentage Interest of the Class A-S Regular Interest.
“Class A-S-PEX Percentage Interest”: As of any date of determination, 100% less the Class A-S Percentage Interest as of such date.
“Class A-SB Certificate”: Any one of the Certificates with a “Class A-SB” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing a portion of a class of “regular interests” in REMIC III for purposes of the REMIC Provisions.
“Class A-SB Planned Principal Balance”: With respect to any Distribution Date, the balance shown for such Distribution Date on Schedule X hereto.
“Class B Certificate”: Any one of the Certificates with a “Class B” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing an undivided beneficial interest in the portion of the Grantor Trust Pool consisting of the Class B Specific Grantor Trust Assets and the proceeds thereof.
“Class B Percentage Interest”: As of any date of determination, with respect to the Class B Certificates, a percentage interest equal to a fraction, the numerator of which is the Class Principal Balance of the Class B Certificates on such date, and the denominator of which is the Class Principal Balance of the Class B Regular Interest on such date.
“Class B Regular Interest”: The uncertificated interest corresponding to the Class B Certificates and the Class B-PEX Component and evidencing a “regular interest” in REMIC III for purposes of the REMIC Provisions.
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“Class B Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class B Percentage Interest of the Class B Regular Interest.
“Class B-PEX Component”: One of the three components of the Class PEX Certificates, which component evidences an undivided beneficial interest in the portion of the Grantor Trust Pool consisting of the Class B-PEX Percentage Interest of the Class B Regular Interest.
“Class B-PEX Percentage Interest”: As of any date of determination, 100% less the Class B Percentage Interest as of such date.
“Class C Certificate”: Any one of the Certificates with a “Class C” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing an undivided beneficial interest in the portion of the Grantor Trust Pool consisting of the Class C Specific Grantor Trust Assets and the proceeds thereof.
“Class C Percentage Interest”: As of any date of determination, with respect to the Class C Certificates, a percentage interest equal to a fraction, the numerator of which is the Class Principal Balance of the Class C Certificates on such date, and the denominator of which is the Class Principal Balance of the Class C Regular Interest on such date.
“Class C Regular Interest”: The uncertificated interest corresponding to the Class C Certificates and the Class C-PEX Component and evidencing a “regular interest” in REMIC III for purposes of the REMIC Provisions.
“Class C Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class C Percentage Interest of the Class C Regular Interest.
“Class C-PEX Component”: One of the three components of the Class PEX Certificates, which component evidences an undivided beneficial interest in the portion of the Grantor Trust Pool consisting of the Class C-PEX Percentage Interest of the Class C Regular Interest.
“Class C-PEX Percentage Interest”: As of any date of determination, 100% less the Class C Percentage Interest as of such date.
“Class D Certificate”: Any one of the Certificates with a “Class D” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing a portion of a class of “regular interests” in REMIC III for purposes of the REMIC Provisions.
“Class Designation”: As set forth in the Preliminary Statement under “Class Designations of the Certificates”, the Class PEX Components and the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest.
“Class E Certificate”: Any one of the Certificates with a “Class E” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing a portion of a class of “regular interests” in REMIC III for purposes of the REMIC Provisions.
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“Class F Certificate”: Any one of the Certificates with a “Class F” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing a portion of a class of “regular interests” in REMIC III for purposes of the REMIC Provisions.
“Class F Transfer”: As defined in Section 3.23(i).
“Class G Certificate”: Any one of the Certificates with a “Class G” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing a portion of a class of “regular interests” in REMIC III for purposes of the REMIC Provisions.
“Class Interest Shortfall”: As defined in the definition of “Interest Distribution Amount”.
“Class Notional Amount”: The aggregate hypothetical or notional amount on which any Class of Interest Only Certificates accrues or is deemed to accrue interest from time to time, as calculated in accordance with Section 2.15(e).
“Class PEX Certificate”: Any one of the Certificates with a “Class PEX” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing an undivided beneficial interest in the portion of the Grantor Trust Pool consisting of the Class PEX Specific Grantor Trust Assets and the proceeds thereof.
“Class PEX Component”: Each of the Class A-S-PEX Component, the Class B-PEX Component and the Class C-PEX Component.
“Class PEX Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of the Class A-S-PEX Percentage Interest of the Class A-S Regular Interest, the Class B-PEX Percentage Interest of the Class B Regular Interest and the Class C-PEX Percentage Interest of the Class C Regular Interest.
“Class Principal Balance”: The aggregate principal balance of any Class of Principal Balance Certificates, Class PEX Component or the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest outstanding as of any date of determination. As of the Closing Date, the Class Principal Balance of each Class of Principal Balance Certificates, Class PEX Component and the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest shall equal the initial Class Principal Balance thereof. On each Distribution Date, the Class Principal Balance of each Class of Principal Balance Certificates, Class PEX Component and the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest shall be (i) reduced by the amount of any distributions of principal made thereon on such Distribution Date pursuant to Section 4.01, (ii) further reduced by the amount of any Realized Losses and Additional Trust Fund Expenses deemed allocated thereto on such Distribution Date pursuant to Section 4.04(a); and (iii) if such Class is not a Control-Eligible Class, any Excess Trust Advisor Expenses allocated to such Class of Principal Balance Certificates, Class PEX Component or the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest on such Distribution Date pursuant to Section 4.05; provided that if the Principal Distribution Amount for such Distribution Date includes any amount described in clause (I)(C) of the definition of “Principal Distribution Amount” (in respect of recoveries during the Collection Period related to such Distribution Date of amounts determined to constitute
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Nonrecoverable Advances during a Collection Period related to a prior Distribution Date), then the Class Principal Balances of the respective Classes of Principal Balance Certificates, Class PEX Component or the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest shall hereby be increased (in the aggregate) immediately prior to such Distribution Date by the lesser of the amount of Realized Losses previously allocated thereto and such amount described in such clause (I)(C) (and, as among the respective Classes of Principal Balance Certificates, Class PEX Components or the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest, such increase shall be allocated, first, to the Class A Certificates, pro rata according to the amounts of Realized Losses previously allocated to the respective Classes of Class A Certificates, then to the Class A-S Regular Interest, then to the Class B Regular Interest, then to the Class C Regular Interest, and then to the Class D, Class E, Class F and Class G Certificates, in that order in each case to the extent of the lesser of the Realized Losses previously allocated thereto and the remaining unallocated portion of the increase). Amounts allocated to the Class A-S Regular Interest as described in the preceding sentence shall be allocated between the Class A-S Certificates and Class A-S-PEX Component in accordance with the Class A-S Percentage Interest and the Class A-S-PEX Percentage Interest, respectively. Amounts allocated to the Class B Regular Interest as described in the second preceding sentence shall be allocated between the Class B Certificates and Class B-PEX Component in accordance with the Class B Percentage Interest and the Class B-PEX Percentage Interest, respectively. Amounts allocated to the Class C Regular Interest as described in the third preceding sentence shall be allocated between the Class C Certificates and Class C-PEX Component in accordance with the Class C Percentage Interest and the Class C-PEX Percentage Interest, respectively. The original and outstanding Class Principal Balances of the Class A-S, Class B, Class C and Class PEX Certificates and the Class PEX Components are subject to adjustment in connection with any exchange of Class A-S, Class B and Class C Certificates for Class PEX Certificates, or vice versa, in each case in accordance with Section 5.09 hereof.
“Class V Certificate”: Any of the Certificates with a “Class V” designation on the face thereof, substantially in the form of Exhibit A-3 attached hereto, and evidencing beneficial ownership of the Class V Specific Grantor Trust Assets.
“Class V Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of any collections of Post-ARD Additional Interest received by the Trust with respect to the Mortgage Loans that are ARD Mortgage Loans and/or any successor REO Mortgage Loans with respect thereto.
“Class V Sub-Account”: As defined in Section 3.04(b).
“Class X-A Certificate”: Any of the Certificates with a “Class X-A” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing ownership of a portion of seven (7) classes of “regular interests” in REMIC III for purposes of the REMIC Provisions.
“Class X-A Strip Rate”: With respect to each REMIC III Component of the Class X-A Certificates, with respect to each Interest Accrual Period, a rate per annum equal to the greater of (I) zero and (II) the excess, if any, of the WAC Rate for such Interest Accrual Period over the Pass-Through Rate on the Class of Principal Balance Certificates (other than the Class
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A-S Certificates) and the Class A-S Regular Interest with the same alphanumeric designation; and with respect to the Class X-A Certificates as a whole, the greater of (I) zero and (II) the excess of the WAC Rate over the weighted average of the Pass-Through Rates of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5 and Class A-SB Certificates and the Class A-S Regular Interest for such Interest Accrual Period, weighted on the basis of the Class Principal Balances of such Classes of Certificates and Class A-S Regular Interest outstanding immediately prior to the conclusion of such Interest Accrual Period.
“Class X-B Certificate”: Any of the Certificates with a “Class X-B” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing ownership of a portion of two (2) classes of “regular interests” in REMIC III for purposes of the REMIC Provisions.
“Class X-B Strip Rate”: With respect to each REMIC III Component of the Class X-B Certificates, with respect to each Interest Accrual Period, a rate per annum equal to the greater of (I) zero and (II) the excess, if any, of the WAC Rate for such Interest Accrual Period over the Pass-Through Rate on the Class B Regular Interest and Class C Regular Interest; and with respect to the Class X-B Certificates as a whole, the greater of (I) zero and (II) excess of the WAC Rate over the weighted average of the Pass-Through Rates of the Class B Regular Interest and Class C Regular Interest for such Interest Accrual Period, weighted on the basis of the Class Principal Balances of the Class B Regular Interest and Class C Regular Interest outstanding immediately prior to the conclusion of such Interest Accrual Period.
“Class X-E Certificate”: Any of the Certificates with a “Class X-E” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing ownership of a portion of one (1) class of “regular interests” in REMIC III for purposes of the REMIC Provisions.
“Class X-E Strip Rate”: With respect to the REMIC III Component of the Class X-E Certificates, with respect to each Interest Accrual Period, a rate per annum equal to the greater of (I) zero and (II) the excess, if any, of the WAC Rate for such Interest Accrual Period over the Pass-Through Rate on the Principal Balance Certificate with the same alphabetic designation; and with respect to the Class X-E Certificates as a whole, the greater of (I) zero and (II) excess of the WAC Rate over the Pass-Through Rate of the Class E Certificates for such Interest Accrual Period.
“Class X-F Certificate”: Any of the Certificates with a “Class X-F” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing ownership of a portion of one (1) class of “regular interests” in REMIC III for purposes of the REMIC Provisions.
“Class X-F Strip Rate”: With respect to the REMIC III Component of the Class X-F Certificates, with respect to each Interest Accrual Period, a rate per annum equal to the greater of (I) zero and (II) the excess, if any, of the WAC Rate for such Interest Accrual Period over the Pass-Through Rate on the Principal Balance Certificate with the same alphabetic designation; and with respect to the Class X-F Certificates as a whole, the greater of (I) zero and
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(II) excess of the WAC Rate over the Pass-Through Rate of the Class F Certificates for such Interest Accrual Period.
“Class X-G Certificate”: Any of the Certificates with a “Class X-G” designation on the face thereof, substantially in the form of Exhibit A-1 attached hereto, and evidencing ownership of a portion of one (1) class of “regular interests” in REMIC III for purposes of the REMIC Provisions.
“Class X-G Strip Rate”: With respect to the REMIC III Component of the Class X-G Certificates, with respect to each Interest Accrual Period, a rate per annum equal to the greater of (I) zero and (II) the excess, if any, of the WAC Rate for such Interest Accrual Period over the Pass-Through Rate on the Principal Balance Certificate with the same alphabetic designation; and with respect to the Class X-G Certificates as a whole, the greater of (I) zero and (II) excess of the WAC Rate over the Pass-Through Rate of the Class G Certificates for such Interest Accrual Period.
“Clearstream”: Clearstream Banking, société anonyme or any successor.
“Closing Date”: April 29, 2015.
“Code”: The Internal Revenue Code of 1986 and regulations promulgated thereunder, including proposed regulations to the extent that, by reason of their proposed effective date, could, as of the date of any determination or opinion as to the tax consequences of any action or proposed action or transaction, be applied to the Trust or the Certificates.
“Collection Account”: The segregated account or accounts created and maintained by the Master Servicer, pursuant to Section 3.04(a), in trust for the Certificateholders, which, shall be entitled “Xxxxx Fargo Bank, National Association [or name of successor Master Servicer], as Master Servicer, on behalf of Wilmington Trust, National Association [or name of any successor Trustee], as Trustee, for the benefit of the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1, Collection Account”.
“Collection Period”: With respect to any Distribution Date, the period commencing on the day immediately following the Determination Date (or, with respect to payments remitted to the Trust by a Non-Trust Master Servicer pursuant to a Non-Trust Pooling and Servicing Agreement, the day immediately following one Business Day after the Determination Date) in the calendar month preceding the month in which such Distribution Date occurs (or, in the case of the initial Distribution Date, commencing as of the Cut-off Date) and ending on and including the Determination Date (or, with respect to payments remitted to the Trust by a Non-Trust Master Servicer pursuant to a Non-Trust Pooling and Servicing Agreement, one Business Day after the Determination Date) in the calendar month in which such Distribution Date occurs.
“Collective Consultation Period”: Unless a Senior Consultation Period is deemed to occur and is continuing pursuant to clause (ii) of the definition of “Senior Consultation Period”, any period when both (i) the Class Principal Balance of the Class F Certificates, reduced by any Appraisal Reduction Amounts allocable to such Class, is less than 25% of the initial
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Class Principal Balance of the Class F Certificates and (ii) the Class Principal Balance of the Class F Certificates, without regard to any Appraisal Reduction Amounts allocable to such Class, is at least 25% of the initial Class Principal Balance of the Class F Certificates.
No Collective Consultation Period shall limit the control and consultation rights of the “Controlling Note Holder” (as defined in the related Intercreditor Agreement) of any Non-Serviced Loan Combination.
“COMM 2015-DC1 Pooling and Servicing Agreement”: That certain Pooling and Servicing Agreement, dated as of March 1, 2015, among Deutsche Mortgage & Asset Receiving Corporation, as depositor, KeyBank National Association, as master servicer, Rialto Capital Advisors, LLC, as a special servicer, Xxxxx Fargo Bank, National Association, as trustee, Xxxxx Fargo Bank, National Association, as certificate administrator, paying agent and custodian, and Park Bridge Lender Services LLC, as operating advisor, relating to the COMM 2015-DC1 securitization (into which the 760 & 800 Westchester Avenue Non-Controlling Pari Passu Companion Loan and the 000 Xxxx 00xx Xxxxxx Pari Passu Non-Controlling Companion Loan designated Note A-3 were deposited).
“Commission”: The Securities and Exchange Commission or any successor thereto.
“Companion Loan Holder”: Any Serviced Pari Passu Companion Loan Holder and/or Non-Serviced Pari Passu Companion Loan Holder, as the context may require.
“Compensating Interest Payment”: With respect to any Distribution Date, any payment made by the Master Servicer from its own funds pursuant to Section 3.19(c) to cover Prepayment Interest Shortfalls incurred during the related Collection Period.
“Component Notional Amount”: The notional amount on which any REMIC III Component of any Class of Interest Only Certificates accrues interest, which, as of any date of determination, is equal to the then-current Uncertificated Principal Balance of such REMIC III Component’s Corresponding REMIC II Regular Interest.
“Condemnation Proceeds”: All cash amounts actually Received by the Trust or on behalf of the Trustee, the Master Servicer or the Special Servicer in connection with the taking of all or a part of a Mortgaged Property or REO Property by exercise of the power of eminent domain or condemnation (in the case of any Non-Trust-Serviced Pooled Mortgage Loan, to the extent of any portions of such amounts received by the Master Servicer pursuant to the related Intercreditor Agreement), exclusive of any portion thereof applied to the restoration of the related Mortgaged Property or REO Property (or placed in a reserve account for that purpose) or required to be released to the related Borrower or any other third party in accordance with applicable law and/or the terms and conditions of the related Mortgage Loan Documents or any other applicable document.
“Control-Eligible Certificate”: Any Class F or Class G Certificate.
“Control-Eligible Class”: The Class F or Class G Certificates.
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“Corporate Trust Office”: The corporate trust office of the Certificate Administrator or the Trustee, as the case may be, at which at any particular time its duties, with respect to this Agreement shall be administered, which office is as of the Closing Date located: (i) in the case of the Certificate Administrator, for Certificate transfer purposes, at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; Attn: Corporate Trust Services Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, and for all other purposes, at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services, Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1; and (ii) in the case of the Trustee, at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: WFCM 2015-NXS1.
“Corrected Mortgage Loan”: Any Serviced Mortgage Loan or Serviced Loan Combination that had been a Specially Serviced Mortgage Loan but has ceased to be such in accordance with the definition of “Specially Serviced Mortgage Loan” (other than by reason of a Liquidation Event occurring in respect of such Serviced Mortgage Loan, Serviced Loan Combination or the related Mortgaged Property becoming an REO Property). With respect to any Serviced Loan Combination, neither the related Serviced Mortgage Loan nor the Serviced Loan Combination in whole shall be a Corrected Mortgage Loan unless both the Serviced Mortgage Loan and the entire Serviced Loan Combination are Corrected Mortgage Loans.
“Corresponding REMIC II Regular Interest(s)”: (a) With respect to any Class of Principal Balance Certificates (other than the Class A-S, Class B, Class C and Class PEX Certificates) and the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest, the REMIC II Regular Interest opposite which such Class of Principal Balance Certificates or Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest is set forth in the Preliminary Statement in the table entitled “REMIC III—Corresponding REMIC II Regular Interests”; (b) with respect to any REMIC III Component of the Class X-A Certificates, the REMIC II Regular Interest opposite which such REMIC III Component is set forth in the Preliminary Statement in the table entitled “REMIC III—Corresponding REMIC II Regular Interests”; (c) with respect to any REMIC III Component of the Class X-B Certificates, the REMIC II Regular Interest opposite which such REMIC III Component is set forth in the Preliminary Statement in the table entitled “REMIC III—Corresponding REMIC II Regular Interests”; (d) with respect to the REMIC III Component of the Class X-E Certificates, the REMIC II Regular Interest opposite which such REMIC III Component is set forth in the Preliminary Statement in the table entitled “REMIC III—Corresponding REMIC II Regular Interests”; (e) with respect to the REMIC III Component of the Class X-F Certificates, the REMIC II Regular Interest opposite which such REMIC III Component is set forth in the Preliminary Statement in the table entitled “REMIC III—Corresponding REMIC II Regular Interests”; and (f) with respect to the REMIC III Component of the Class X-G Certificates, the REMIC II Regular Interest opposite which such REMIC III Component is set forth in the Preliminary Statement in the table entitled “REMIC III—Corresponding REMIC II Regular Interests”.
“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
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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 Master Servicer, the Certificate Administrator, the Trustee, the Special Servicer, the Trust Advisor and the Subordinate Class Representative.
“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 recommended by the CREFC® for commercial mortgage-backed securities transactions generally; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Master Servicer, the Special Servicer and the Certificate Administrator. The preparation of each CREFC® Advance Recovery Report shall constitute a responsibility of the Master Servicer and shall not constitute a responsibility of any other party. Notwithstanding anything in this Agreement to the contrary, the Master Servicer shall not be required to deliver a CREFC® Advance Recovery Report with respect to any Collection Period prior to the date when a Workout-Delayed Reimbursement Amount or a Nonrecoverable Advance exists with respect to any Mortgage Loan.
“CREFC® Bond Level File”: The monthly data file 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-backed securities transactions generally; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Certificate Administrator.
“CREFC® Collateral Summary File”: The monthly data file 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-backed securities transactions generally; provided that, to the extent that such other form contemplates such additional information, such other form must be 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
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recommended by the CREFC® for commercial mortgage-backed securities transactions generally; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Master Servicer and the Special Servicer.
“CREFC® Delinquent Loan Status Report”: A monthly 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-backed securities transactions generally; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Master Servicer and the Special Servicer.
“CREFC® Financial File”: A monthly data file 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-backed securities transactions generally; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Master Servicer.
“CREFC® Historical Loan Modification & Corrected Mortgage Loan Report”: A monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Loan Modification 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-backed securities transactions generally; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Master Servicer and the Special Servicer.
“CREFC® Investor Reporting Package”: Collectively:
(a) the following electronic data files: (i) CREFC® Loan Setup File, (ii) CREFC® Loan Periodic Update File, (iii) CREFC® Property File, (iv) CREFC® Bond Level File, (v) CREFC® Financial File, (vi) CREFC® Collateral Summary File and (vii) CREFC® Special Servicer Loan File; and
(b) the following supplemental reports: (i) CREFC® Delinquent Loan Status Report, (ii) CREFC® Historical Loan Modification & Corrected Mortgage Loan Report, (iii) CREFC® REO Status Report, (iv) CREFC® Operating Statement Analysis Report, (v) CREFC® Comparative Financial Status Report, (vi) CREFC® Servicer Watch List, (vii) CREFC® NOI Adjustment Worksheet, (viii) CREFC® Loan Level Reserve/LOC Report, (ix) CREFC® Reconciliation of Funds Report, (x) CREFC® Advance Recovery Report and (xi) solely with respect to the Loan Combinations, CREFC® Total Loan Report.
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Notwithstanding anything in this Agreement to the contrary, in the event any of the electronic files listed in clause (a) of this definition or any of the supplemental reports listed in clause (b) of this definition are amended or changed in any material respect by the CREFC® and placed on the CREFC® Website or otherwise recommended by the CREFC® for commercial mortgage-backed securities transactions generally, so long as such electronic files and such supplemental reports are reasonably acceptable (as applicable) to the Master Servicer and the Special Servicer, then same shall be used with respect to the Collection Period that commences at any time following the date that is not later than three (3) months following adoption of the form thereof by the CREFC®.
“CREFC® License Fee”: With respect to each Mortgage Loan and REO Mortgage Loan, a monthly fee payable in respect thereof in an amount equal to the amount of interest accrued during the accrual period for such Mortgage Loan or REO Mortgage Loan under its Mortgage Loan Documents at the related CREFC® License Fee Rate on the same balance, in the same manner and for the same number of days as interest at the applicable Mortgage Rate accrued with respect to such Mortgage Loan or REO Mortgage Loan during such accrual period, and will be prorated for partial periods. Any payments of the CREFC® License Fee shall be made by the Master Servicer on a monthly basis on each Master Servicer Remittance Date to “CRE Finance Council” and delivered by wire transfer pursuant to the following instructions (or such other instructions as may hereafter be furnished by CREFC® to the Master Servicer in writing):
Account Name: Commercial Real Estate Finance
Council (CREFC)
Bank Name: JPMorgan Chase Bank, National Association
Bank Address: 00 Xxxxxxxx, Xxx Xxxx, XX 00000
Routing Number: 000000000
Account Number: 213597397
To the extent that amounts on deposit in the Collection Account are insufficient to pay the CREFC® License Fee on any Master Servicer Remittance Date, the Master Servicer shall apply any P&I Advances required to be made by it on the related P&I Advance Date pursuant to Sections 4.03(a) and 4.03(b) to pay the balance of such CREFC® License Fee.
“CREFC® License Fee Rate”: 0.0005% per annum.
“CREFC® Loan Level Reserve/LOC Report”: A monthly report substantially in the form of, and containing the information called for in, the “Loan Level Reserve Report” as adopted by the CREFC® and made available at the CREFC® Website.
“CREFC® Loan Periodic Update File”: The monthly data file substantially in the form of, and containing the information called for in, the downloadable form of the “Loan 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-backed securities transactions generally; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Master Servicer, the Special Servicer and the Certificate Administrator.
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“CREFC® Loan Setup File”: The data file 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-backed securities transactions generally; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Master Servicer, the Special Servicer and the Certificate Administrator.
“CREFC® NOI Adjustment Worksheet”: An annual 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-backed securities transactions generally; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Master Servicer and the Special Servicer.
“CREFC® Operating Statement Analysis Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Operating Statement Analysis Report” available 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-backed securities transactions generally; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Master Servicer.
“CREFC® Property File”: A data file 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-backed securities transactions generally; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Master Servicer and the Special Servicer.
“CREFC® Reconciliation of Funds Report”: A monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Reconciliation of Funds 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-backed securities transactions generally; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Certificate Administrator.
“CREFC® REO Status Report”: A monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “REO Status Report”
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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-backed securities transactions generally; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Master Servicer and the Special Servicer.
“CREFC® Servicer Watch List”: A monthly 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 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; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Master Servicer.
“CREFC® Special Servicer Loan File”: A data file 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 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; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to 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; provided that, to the extent that such other form contemplates such additional information, such other form must be reasonably acceptable to the Master Servicer.
“CREFC® Website”: The CREFC®’s Website located at “xxx.xxxxx.xxx” or such other primary website as the CREFC® may establish for dissemination of its report forms.
“Cross-Collateralized Group”: Any group of Mortgage Loans that are cross-defaulted and cross-collateralized with each other. For the avoidance of doubt, there are no Cross-Collateralized Groups related to this Trust as of the Closing Date.
“Cross-Collateralized Mortgage Loan”: Any Mortgage Loan, that is, by its terms, cross-defaulted and cross-collateralized with any other Mortgage Loan; provided that the Mortgage Loans that are part of any Loan Combination shall not constitute Cross-Collateralized Mortgage Loans.
“Custodian”: Xxxxx Fargo Bank, National Association, in its capacity as Custodian hereunder, or any successor custodian appointed as herein provided.
“Cut-off Date”: With respect to each Mortgage Loan, the Due Date for the Monthly Payment due on such Mortgage Loan in April 2015 (or, in the case of any Mortgage
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Loan that has its first Due Date in May 2015, the date that would have been its Due Date in April 2015 under the terms of that Mortgage Loan if a Monthly Payment were scheduled to be due in that month).
“Cut-off Date Pool Balance”: The aggregate Cut-off Date Principal Balance of all the Original Mortgage Loans.
“Cut-off Date Principal Balance”: With respect to any Mortgage Loan, the outstanding principal balance of such Mortgage Loan as of its Cut-off Date, after application of all payments of principal due on or before such date, whether or not received.
“DBRS”: DBRS, Inc. or its successor-in-interest. If neither such rating agency nor any successor remains in existence, “DBRS” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor (and such designation shall be deemed to be reasonable if the Person so designated is an NRSRO that has been regularly engaged in rating new issue commercial mortgage-backed securities transactions during the 12 months preceding the designation), notice of which designation shall be given to the other parties hereto, and specific ratings of DBRS herein referenced shall be deemed to refer to the equivalent ratings of the party so designated. References herein to “applicable rating category” (other than such references to “highest applicable rating category”) shall, in the case of DBRS, be deemed to refer to such applicable rating category of DBRS, without regard to any plus or minus or other comparable rating qualification.
“Default Charges”: Default Interest and/or late payment charges that are paid or payable, as the context may require, in respect of any Mortgage Loan or Serviced Pari Passu Companion Loan or REO Mortgage Loan.
“Default Interest”: With respect to any Mortgage Loan (or successor REO Mortgage Loan) or Serviced Pari Passu Companion Loan, any amounts collected thereon, other than late payment charges, Prepayment Premiums or Yield Maintenance Charges, that represent interest in excess of interest (exclusive, if applicable, of Post-ARD Additional Interest) accrued on the principal balance of such Mortgage Loan (or REO Mortgage Loan) or Serviced Pari Passu Companion Loan at the related Mortgage Rate, such excess interest arising out of a default under such Mortgage Loan or Serviced Pari Passu Companion Loan.
“Defaulted Mortgage Loan”: A Serviced Mortgage Loan that is both (A) a Specially Serviced Mortgage Loan and (B) either (i) delinquent 120 days or more with respect to any Balloon Payment or sixty (60) days or more with respect to any other Monthly Payment, with such delinquency to be determined without giving effect to any grace period permitted by the related Mortgage or Mortgage Note and without regard to any acceleration of payments under the related Mortgage and Mortgage Note, or (ii) a Serviced Mortgage Loan as to which the amounts due thereunder have been accelerated following any other material default.
“Defective Mortgage Loan”: Any Mortgage Loan as to which there exists a Material Breach or a Material Document Defect that has not been cured in all material respects.
“Deficient Exchange Act Deliverable”: With respect to the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Tax Administrator, the
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Custodian, the Trustee and each Servicing Function Participant and Additional Servicer retained by it (other than a Designated Sub-Servicer), any item (x) regarding such party, (y) prepared by such party or any registered public accounting firm, attorney or other agent retained by such party to prepare such item and (z) delivered by or on behalf of such party pursuant to the delivery requirements under Article XI of this Agreement that does not conform to the applicable reporting requirements under the Securities Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder.
“Definitive Certificate”: As defined in Section 5.03(a).
“Definitive Non-Registered Certificate”: Any Non-Registered Certificate that constitutes a Definitive Certificate.
“Deleted Mortgage Loan”: A Defective Mortgage Loan that is purchased or repurchased, as the case may be, from the Trust or replaced with one or more Replacement Mortgage Loans, in either case as contemplated by Section 2.03.
“Depositor”: Xxxxx Fargo Commercial Mortgage Securities, Inc., or its successor-in-interest.
“Depository”: The Depository Trust Company or any successor Depository hereafter named as contemplated by Section 5.03(c). The nominee of the initial Depository for purposes of registering those Certificates that are to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times be a “clearing corporation” as defined in Section 8-102(3) of the Uniform Commercial Code of the State of New York and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act.
“Depository Participant”: A broker, dealer, bank or other financial institution or other Person for whom from time to time the Depository effects book-entry transfers and pledges of securities deposited with the Depository.
“Designated Sub-Servicer”: A Sub-Servicer or Additional Servicer required by a Mortgage Loan Seller to be retained by the Master Servicer, as listed on Schedule IV hereto, including any Primary Servicer.
“Designated Sub-Servicing Agreement”: Any Sub-Servicing Agreement between a Designated Sub-Servicer and the Master Servicer, including any Primary Servicing Agreement.
“Designated Trust Advisor Expenses”: Any Trust Advisor Expenses for which the Trust Advisor is indemnified under this Agreement or for which any Non-Trust Trust Advisor is entitled to indemnification under the related Intercreditor Agreement and arise from any legal action that is pending or threatened against the Trust Advisor or any Non-Trust Trust Advisor at the time of its discharge, termination or resignation under this Agreement or the related Non-Trust Pooling and Servicing Agreement.
“Determination Date”: The 11th day of each month, or if such 11th day is not a Business Day, the Business Day immediately following such 11th day, commencing in May 2015.
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“Directly Operate” or “Directly Operating”: With respect to any Administered REO Property, the furnishing or rendering of services to the tenants thereof, the management or operation of such Administered REO Property, the holding of such Administered REO Property primarily for sale or lease, the performance of any construction work thereon or any use of such Administered REO Property in a trade or business conducted by the Trust other than through an Independent Contractor; provided that the Special Servicer shall not be considered to Directly Operate an Administered REO Property solely because the Special Servicer establishes rental terms, chooses tenants, enters into or renews leases, deals with taxes and insurance, or makes decisions as to repairs or capital expenditures with respect to such Administered REO Property.
“Disclosable Special Servicer Fees”: With respect to any Mortgage Loan (other than any Non-Trust-Serviced Pooled Mortgage Loan), Serviced Loan Combination or Administered REO Property, any compensation and other remuneration (including, without limitation, in the form of commissions, brokerage fees, rebates, or as a result of any other fee-sharing arrangement) received or retained by the Special Servicer or any of its Affiliates that is paid by any Person (including, without limitation, the Trust, any Borrower, any manager, any guarantor or indemnitor in respect of a Mortgage Loan (other than any Non-Trust-Serviced Pooled Mortgage Loan) and any purchaser of any Mortgage Loan (other than any Non-Trust-Serviced Pooled Mortgage Loan), Serviced Loan Combination or Administered REO Property) in connection with the disposition, workout or foreclosure of any Mortgage Loan (other than any Non-Trust-Serviced Pooled Mortgage Loan) or Serviced Loan Combination, the management or disposition of any Administered REO Property, and the performance by the Special Servicer or any such Affiliate of any other special servicing duties under this Agreement, other than (1) any Permitted Special Servicer/Affiliate Fees and (2) any compensation to which the Special Servicer is entitled pursuant to Section 3.11 of this Agreement.
“Discount Rate”: As defined in Section 4.01(c).
“Disqualified Non-United States Tax Person”: With respect to any Class R Certificate, any Non-United States Tax Person or agent thereof other than: (1) a Non-United States Tax Person that (a) holds such Class R Certificate and, for purposes of Treasury Regulations Section 1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies that it understands that, for purposes of Treasury Regulations Section 1.860E-1(c)(4)(ii), as a holder of such Class R Certificate for United States federal income tax purposes, it may incur tax liabilities in excess of any cash flows generated by such Class R Certificate and intends to pay taxes associated with holding such Class R Certificate, and (c) has furnished the Transferor, the Trustee, the Certificate Administrator and the Tax Administrator with an effective IRS Form W-8ECI or successor form and has agreed to update such form as required under the applicable Treasury regulations; or (2) a Non-United States Tax Person that has delivered to the Transferor, the Trustee, the Certificate Administrator and the Tax Administrator an opinion of nationally recognized tax counsel to the effect that (x) the Transfer of such Class R Certificate to it is in accordance with the requirements of the Code and the regulations promulgated thereunder and (y) such Transfer of such Class R Certificate will not be disregarded for United States federal income tax purposes.
“Disqualified Organization”: Any of the following: (i) the United States or a possession thereof, any State or any political subdivision thereof, or any agency or
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instrumentality of any of the foregoing (other than an instrumentality which is a corporation if all of its activities are subject to tax and, except for Xxxxxxx Mac, a majority of its board of directors is not selected by any such governmental unit), (ii) a foreign government, international organization, or any agency or instrumentality of either of the foregoing, (iii) any organization (except certain farmers’ cooperatives described in Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code (unless such organization is subject to the tax imposed by Section 511 of the Code on unrelated business taxable income), (iv) rural electric and telephone cooperatives described in Section 1381 of the Code or (v) any other Person so designated by the Tax Administrator, based upon an Opinion of Counsel delivered to the Tax Administrator (but not at the Tax Administrator’s expense) to the effect that the holding of an Ownership Interest in a Class R Certificate by such Person may cause the Trust or any Person having an Ownership Interest in any Class of Certificates, other than such Person, to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the Transfer of an Ownership Interest in a Class R Certificate to such Person. The terms “United States”, “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.
“Disqualified Partnership”: Any domestic entity classified as a partnership under the Code if any of its direct or indirect beneficial owners (other than through a U.S. corporation) are (or, under the applicable partnership agreement, are permitted to be) Disqualified Non-United States Tax Persons.
“Distribution Account”: The segregated account or accounts created and maintained by the Certificate Administrator on behalf of the Trustee, pursuant to Section 3.04(b), for the benefit of the Certificateholders, which shall be entitled “Xxxxx Fargo Bank, National Association [or the name of any successor Certificate Administrator], as Certificate Administrator, on behalf of Wilmington Trust, National Association [or the name of any successor Trustee], as Trustee, for the benefit of the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1, Distribution Account”.
“Distribution Date”: The fourth Business Day following the Determination Date in each month, commencing in May 2015. The first Distribution Date shall be May 15, 2015.
“Distribution Date Statement”: As defined in Section 4.02(a).
“Document Defect”: As defined in Section 2.03(a).
“Xxxx-Xxxxx Act”: The Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, as amended.
“DTC”: The Depository Trust Company.
“Due Date”: With respect to (i) any Mortgage Loan or Serviced Loan Combination on or prior to its Stated Maturity Date, the day of the month set forth in the related Mortgage Note on which each Monthly Payment on such Mortgage Loan or Serviced Loan Combination is scheduled to be first due; (ii) any Mortgage Loan or Serviced Loan Combination after its Stated Maturity Date, the day of the month set forth in the related Mortgage Note on
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which each Monthly Payment on such Mortgage Loan or Serviced Loan Combination had been scheduled to be first due; and (iii) any REO Mortgage Loan, the day of the month set forth in the related Mortgage Note on which each Monthly Payment on the related Mortgage Loan or Serviced Loan Combination had been scheduled to be first due.
“Eastgate One Phases I-VII & XII Loan Combination”: As defined in the Preliminary Statement.
“Eastgate One Phases I-VII & XII Mortgage Loan”: As defined in the Preliminary Statement.
“Eastgate One Phases I-VII & XII Pari Passu Companion Loan”: As defined in the Preliminary Statement.
“Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date”: With respect to the Eastgate One Phases I-VII & XII Loan Combination, the date on which the Eastgate One Phases I-VII & XII Pari Passu Companion Loan is included in a securitization trust; provided that the Companion Loan Holder of the Eastgate One Phases I-VII & XII Pari Passu Companion Loan provides each of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Trustee (in each case only to the extent such party will not also be a party to the related Non-Trust Pooling and Servicing Agreement) and the Subordinate Class Representative with notice in accordance with the terms of the related Intercreditor Agreement that the Eastgate One Phases I-VII & XII Pari Passu Companion Loan is to be included in the securitization related to such Non-Trust Pooling and Servicing Agreement.
“Eastgate Two Phases VIII-X Loan Combination”: As defined in the Preliminary Statement.
“Eastgate Two Phases VIII-X Mortgage Loan”: As defined in the Preliminary Statement.
“Eastgate Two Phases VIII-X Pari Passu Companion Loan”: As defined in the Preliminary Statement.
“Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date”: With respect to the Eastgate Two Phases VIII-X Loan Combination, the date on which the Eastgate Two Phases VIII-X Pari Passu Companion Loan is included in a securitization trust; provided that the Companion Loan Holder of the Eastgate Two Phases VIII-X Pari Passu Companion Loan provides each of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Trustee (in each case only to the extent such party will not also be a party to the related Non-Trust Pooling and Servicing Agreement) and the Subordinate Class Representative with notice in accordance with the terms of the related Intercreditor Agreement that the Eastgate Two Phases VIII-X Pari Passu Companion Loan is to be included in the securitization related to such Non-Trust Pooling and Servicing Agreement.
“XXXXX”: The Electronic Data Gathering, Analysis, and Retrieval System of the Commission, which is the computer system for the receipt, acceptance, review and dissemination of documents submitted to the Commission in electronic format.
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“XXXXX-Compatible Format”: Any format compatible with XXXXX, including HTML, Word, Excel or clean, searchable PDFs.
“Eligible Account”: Any of the following:
(i) an account maintained with a federal or state chartered depository institution or trust company, (A) the long-term deposit or long-term unsecured debt obligations of which are rated no less than “A” by Fitch (to the extent rated by Fitch), “A” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Fitch and/or Xxxxx’x)) and “A2” by Xxxxx’x, if the deposits are to be held in the account for more than thirty (30) days, or (B) the short-term deposit or short-term unsecured debt obligations of which are rated no less than “F-1” by Fitch (to the extent rated by Fitch), “R-1 (middle)” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Fitch and/or Xxxxx’x)) and “P-1” by Xxxxx’x if the deposits are to be held in the account for thirty (30) days or less, in any event at any time funds are on deposit therein;
(ii) for so long as WFB serves as Master Servicer hereunder, an account maintained with WFB, a wholly-owned subsidiary of Xxxxx Fargo & Co., provided that such subsidiary’s (A) commercial paper, short-term unsecured debt obligations or other short-term deposits are rated no less than “F-1” by Fitch (to the extent rated by Fitch), “R-1 (middle)” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Fitch and/or Xxxxx’x)) and “P-1” by Xxxxx’x if the deposits are to be held in the account for thirty (30) days or less, or (B) long-term unsecured debt obligations are rated at least “A” by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Fitch and/or Xxxxx’x)) and “A2” by Xxxxx’x, if the accounts are to be held in the account for more than thirty (30) days;
(iii) a segregated trust account maintained with the trust department of a federal or state chartered depository institution or trust company (which, subject to the remainder of this clause (iii), may include the Certificate Administrator or the Trustee) acting in its fiduciary capacity, and which, in either case, has a combined capital and surplus of at least $50,000,000 and is subject to supervision or examination by federal or state authority and to regulations regarding fiduciary funds on deposit similar to Title 12 of the Code of Federal Regulations Section 9.10(b) and the long-term unsecured debt obligations of which are rated at least “A2” by Xxxxx’x;
(iv) an account or accounts maintained with KeyBank National Association, (i) so long as KeyBank National Association’s long term unsecured debt rating shall be at least “A3” from Xxxxx’x and “A-” from Fitch (if the deposits are to be held in the account for more than thirty (30) days) or KeyBank National Association’s short-term deposit or short-term unsecured debt rating shall be at least “P-1” from Xxxxx’x and “F1” from Fitch (if the deposits are to be held in the account for thirty (30) days or less), and (ii) so long as KeyBank National Association does not service Mortgage Loans representing more than 10% of the Cut-off Date Pool Balance;
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(v) an account other than one listed in clauses (i) – (iv) above that is maintained with any insured depository institution that is the subject of a Rating Agency Confirmation from each and every Rating Agency; or
(vi) an account that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i) – (iv) above that is the subject of a Rating Agency Confirmation from each Rating Agency for which the minimum rating(s) set forth in the applicable clause is not satisfied with respect to such account.
“Emergency Advance”: Any Servicing Advance, whether or not it is a Servicing Advance that, pursuant hereto, the Special Servicer is required to make (at its sole discretion in accordance with the Servicing Standard) or to request the Master Servicer to make, that must be made within three (3) Business Days of the Special Servicer obtaining actual knowledge that it must be made in order to avoid any material penalty, any material harm to a Mortgaged Property securing a Serviced Mortgage Loan or Serviced Loan Combination or any other material adverse consequence to the Trust Fund.
“Environmental Insurance Policy”: With respect to any Mortgaged Property securing a Serviced Mortgage Loan or any Administered REO Property, any insurance policy covering pollution conditions and/or other environmental conditions that is maintained from time to time in respect of such Mortgaged Property or Administered REO Property, as the case may be, for the benefit of, among others, the Trustee on behalf of the Certificateholders.
“ERISA”: The Employee Retirement Income Security Act of 1974, as amended.
“Escrow Payment”: Any payment received by the Master Servicer or the Special Servicer for the account of the Borrower under any Serviced Mortgage Loan or Serviced Loan Combination for application toward the payment of real estate taxes, assessments, insurance premiums (including with respect to any Environmental Insurance Policy), ground rents (if applicable) and similar items in respect of the related Mortgaged Property.
“Euroclear”: The Euroclear System or any successor thereto.
“Excess Liquidation Proceeds”: The excess, if any, of (a) the Net Liquidation Proceeds from the sale or liquidation of a Specially Serviced Mortgage Loan or an Administered REO Property (or the proceeds of the final payment (including any full, partial or discounted payoff) on a Defaulted Mortgage Loan or a Corrected Mortgage Loan that were Received by the Trust, net of any and all fees, expenses and costs payable therefrom), over (b) the sum of (i) the amount needed to pay all principal, interest (including Default Interest and (if applicable) Post-ARD Additional Interest), Prepayment Premiums or Yield Maintenance Charges (as applicable) and late payment charges payable with respect to such Mortgage Loan or the related REO Mortgage Loan, as the case may be (together with, without duplication, any outstanding Unliquidated Advances in respect of any such principal or interest), in full, (ii) any other fees that would constitute Additional Master Servicing Compensation and/or Additional Special Servicing Compensation, (iii) any related unreimbursed Servicing Advances (together with, without duplication, outstanding Unliquidated Advances in respect of prior Servicing Advances),
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(iv) all unpaid Advance Interest on any related Advances (but (for the avoidance of doubt) excluding any Unliquidated Advances), (v) any related Liquidation Fee and/or Special Servicing Fees paid or payable in respect of such Specially Serviced Mortgage Loan or the related REO Mortgage Loan, (vi) any other Additional Trust Fund Expenses paid or payable in respect of such Mortgage Loan or Administered REO Property, and (vii) in the case of (a) any Specially Serviced Mortgage Loan that is a Serviced Loan Combination or (b) any Administered REO Property relating to a Serviced Loan Combination, any portion of such Net Liquidation Proceeds payable to any one or more of the related Serviced Pari Passu Companion Loan Holder(s) pursuant to the terms of the related Intercreditor Agreement. With respect to any Non-Serviced Loan Combination, Excess Liquidation Proceeds shall mean the related Non-Trust-Serviced Pooled Mortgage Loan’s pro rata share of any “Excess Liquidation Proceeds” as defined in, and determined in accordance with, the related Non-Trust Pooling and Servicing Agreement that are Received by the Trust.
“Excess Liquidation Proceeds Account”: The segregated account (or the sub-account of the Distribution Account) created and maintained by the Certificate Administrator on behalf of the Trustee pursuant to Section 3.04(d) for the benefit of the Certificateholders, which shall be entitled “Xxxxx Fargo Bank, National Association [or the name of any successor Certificate Administrator], as Certificate Administrator on behalf of Wilmington Trust, National Association [or name of any successor Trustee], as Trustee, for the benefit of the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1, Excess Liquidation Proceeds Account”.
“Excess Servicing Fee Rate”: With respect to each Mortgage Loan or Serviced Pari Passu Companion Loan (and any successor REO Mortgage Loan with respect thereto), a rate per annum equal to zero (0) basis points. If the Excess Servicing Fee Rate is a rate per annum that is greater than zero (0) basis points, such rate shall be subject to reduction at any time following any resignation of the Master Servicer pursuant to Section 6.04 (if no successor is appointed in accordance with Section 6.04(b)) or any termination of the Master Servicer pursuant to Section 7.01, to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to appoint a qualified successor Master Servicer (which successor may include the Trustee) that meets the requirements of Section 7.02.
“Excess Servicing Fee Right”: With respect to each Mortgage Loan or Serviced Pari Passu Companion Loan (and any successor REO Mortgage Loan with respect thereto), the right to receive Excess Servicing Fees. In the absence of any transfer of the Excess Servicing Fee Right by the Master Servicer, the Master Servicer shall be the owner of such Excess Servicing Fee Right with respect to each Mortgage Loan and any Serviced Pari Passu Companion Loan (and any successor REO Mortgage Loan with respect thereto).
“Excess Servicing Fees”: With respect to each Mortgage Loan and any Serviced Pari Passu Companion Loan (and any successor REO Mortgage Loan with respect thereto), that portion of the Master Servicing Fees that accrue at a per annum rate equal to the Excess Servicing Fee Rate.
“Excess Trust Advisor Expenses”: With respect to each Distribution Date, an amount equal to the positive amount, if any, of the Trust Advisor Expenses for such Distribution
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Date, less the amount of any such Trust Advisor Expenses allocated to reduce the aggregate Interest Distribution Amount of the Class B Regular Interest, the Class C Regular Interest and the Class D and Class E Certificates for such Distribution Date.
“Exchange Act”: The Securities Exchange Act of 1934, as it may be amended from time to time.
“Exchange Date”: As defined in Section 5.09(c).
“Exchange Proportion”: With respect to any exchange of Exchangeable Certificates pursuant to Section 5.09, Class A-S, Class B and Class C Certificates with original Certificate Principal Balances (regardless of current Certificate Principal Balance) that represent approximately 35.94%, 34.37% and 29.69%, respectively, of the aggregate original Certificate Principal Balances of all Class A-S, B and C Certificates involved in the exchange.
“Exchangeable Certificates”: The Class A-S, Class B, Class C and Class PEX Certificates.
“Exemption”: PTE 96-22 issued to a predecessor of WFS, as amended by PTE 2013-08 and as may be subsequently amended following the Closing Date.
“Exemption-Favored Party”: Any of (i) WFS, (ii) any Person directly or indirectly, through one or more intermediaries, controlling, controlled by or under common control with WFS and (iii) any member of any underwriting syndicate or selling group of which any Person described in clauses (i) and (ii) is a manager or co-manager with respect to a Class of Certificates.
“Xxxxxx Xxx”: The Federal National Mortgage Association or any successor thereto.
“FDIC”: The Federal Deposit Insurance Corporation or any successor thereto.
“Final Asset Status Report”: As defined in Section 3.24(a)(vi).
“Final Distribution Date”: The Distribution Date on which the final distribution is to be made with respect to the Certificates in connection with a termination of the Trust Fund pursuant to Article IX.
“Final Recovery Determination”: A determination by the Special Servicer with respect to any Specially Serviced Mortgage Loan or Corrected Mortgage Loan or Administered REO Property, or by the related Non-Trust Special Servicer with respect to a Non-Trust-Serviced Pooled Mortgage Loan that is a “Specially Serviced Mortgage Loan” (as defined in the related Non-Trust Pooling and Servicing Agreement) or any related Administered REO Property, that there has been a recovery of all Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries that the Special Servicer or the Master Servicer has determined, in accordance with the Servicing Standard, will be ultimately Received by the Trust; provided that the term Final Recovery Determination shall not apply to: (i) a Mortgage Loan or Serviced Loan Combination that was paid in full (including by means of a payoff on behalf of
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the Borrower, or the purchase of such Mortgage Loan or Serviced Loan Combination, by a mezzanine lender or another creditor of the related Borrower in connection with a Mortgage Loan default, as set forth in the related intercreditor agreement) or (ii) a Mortgage Loan, Serviced Loan Combination or Administered REO Property, as the case may be, that was purchased by (a) any Responsible Repurchase Party pursuant to the related Mortgage Loan Purchase Agreement, (b) an Interested Person, the Trustee or the Majority Subordinate Certificateholder in connection with the purchase of a Mortgage Loan or Administered REO Property pursuant to Section 3.18, (c) any Subordinate Class Certificateholder(s), the Master Servicer or the Special Servicer pursuant to Section 9.01 or (d) in respect of a Non-Trust-Serviced Pooled Mortgage Loan by any other party pursuant to the related Intercreditor Agreement and/or pursuant to terms analogous to those set forth in clause (ii)(a), (b) or (c) above contained in the related Non-Trust Pooling and Servicing Agreement; and provided, further, that, for purposes of making any such determination with respect to a Non-Trust-Serviced Pooled Mortgage Loan or any related REO Property, the Master Servicer shall be entitled to rely on, and shall be required to follow, any such determination made pursuant to the related Non-Trust Pooling and Servicing Agreement by the related Non-Trust Master Servicer or the related Non-Trust Special Servicer, as applicable.
“Fitch”: Fitch Ratings, Inc. or its successor-in-interest. If neither such rating agency nor any successor remains in existence, “Fitch” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor (and such designation shall be deemed to be reasonable if the Person so designated is an NRSRO that has been regularly engaged in rating new issue commercial mortgage-backed securities transactions during the 12 months preceding the designation), notice of which designation shall be given to the other parties hereto, and specific ratings of Fitch herein referenced shall be deemed to refer to the equivalent ratings of the party so designated. References herein to “applicable rating category” (other than such references to “highest applicable rating category”) shall, in the case of Fitch, be deemed to refer to such applicable rating category of Fitch, without regard to any plus or minus or other comparable rating qualification.
“Form 8-K Disclosure Information”: As defined in Section 11.10.
“Form 10-K Filing Deadline”: As defined in Section 11.08.
“Xxxxxxx Mac”: The Federal Home Loan Mortgage Corporation or any successor thereto.
“GAAP”: Generally accepted accounting principles in the United States.
“Gateway Portfolio Loan Combination”: As defined in the Preliminary Statement.
“Gateway Portfolio Mortgage Loan”: As defined in the Preliminary Statement.
“Gateway Portfolio Pari Passu Companion Loan”: As defined in the Preliminary Statement.
“Gateway Portfolio Pari Passu Companion Loan Securitization Date”: With respect to the Gateway Portfolio Loan Combination, the date on which the Gateway Portfolio
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Pari Passu Companion Loan is included in a securitization trust; provided that the Companion Loan Holder of the Gateway Portfolio Pari Passu Companion Loan provides each of the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator, the Trustee (in each case only to the extent such party will not also be a party to the related Non-Trust Pooling and Servicing Agreement) and the Subordinate Class Representative with notice in accordance with the terms of the related Intercreditor Agreement that the Gateway Portfolio Pari Passu Companion Loan is to be included in the securitization related to such Non-Trust Pooling and Servicing Agreement.
“Global Certificates”: The Rule 144A Global Certificates and the Regulation S Global Certificates, collectively.
“Grantor Trust”: A grantor trust as defined under subpart E of part 1 of subchapter J of the Code.
“Grantor Trust Pool”: The Grantor Trust created herein containing the Class A-S Specific Grantor Trust Assets, the Class B Specific Grantor Trust Assets, the Class C Specific Grantor Trust Assets, the Class PEX Specific Grantor Trust Assets and the Class V Specific Grantor Trust Assets.
“Grantor Trust Provisions”: Subpart E of part I of subchapter J of the Code, including Treasury Regulations Section 301.7701-4(c)(2).
“Ground Lease”: The ground lease pursuant to which any Borrower holds a leasehold interest in the related Mortgaged Property, together with any estoppels or other agreements executed and delivered by the ground lessor in favor of the lender under the related Mortgage Loan(s).
“Hazardous Materials”: Any dangerous, toxic or hazardous pollutants, chemicals, wastes, or substances, including those so identified pursuant to CERCLA or any other federal, state or local environmental related laws and regulations now existing or hereafter enacted, and specifically including asbestos and asbestos-containing materials, polychlorinated biphenyls (“PCBs”), radon gas, petroleum and petroleum products, urea formaldehyde and any substances classified as being “in inventory”, “usable work in process” or similar classification which would, if classified as unusable, be included in the foregoing definition.
“Holder”: As defined in the definition of “Certificateholder”.
“Hotel Xxxxx Loan Combination”: As defined in the Preliminary Statement.
“Hotel Xxxxx Mortgage Loan”: As defined in the Preliminary Statement.
“Hotel Xxxxx Xxxx Passu Companion Loan”: As defined in the Preliminary Statement.
“Independent”: When used with respect to any specified Person, any such Person who (i) is in fact independent of, (ii) does not have any direct financial interest in or any material indirect financial interest in any of and (iii) is not connected (as an officer, employee, promoter,
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underwriter, trustee, partner, director or Person performing similar functions) with, any of the following and any and all Affiliates thereof: the Depositor, each Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Certificate Administrator, the Tax Administrator, the Trustee, the Trust Advisor, the Subordinate Class Representative, and, if applicable, insofar as the relevant matter involves a Non-Trust-Serviced Pooled Mortgage Loan (whether alone or together with one or more other Mortgage Loans), each Non-Trust Depositor, Non-Trust Master Servicer, Non-Trust Special Servicer, Non-Trust Certificate Administrator, Non-Trust Trustee, Non-Trust Trust Advisor and Non-Trust Subordinate Class Representative and any and all Affiliates thereof; provided that a Person shall not fail to be Independent of any of the aforementioned parties merely because such Person is the beneficial owner of 1% or less of any class of securities issued by any such party; provided that such ownership constitutes less than 1% of the total assets owned by such Person.
“Independent Contractor”: (a) Any Person that would be an “independent contractor” with respect to any REMIC Pool within the meaning of Section 856(d)(3) of the Code if such REMIC Pool were a real estate investment trust (except that the ownership test set forth in that section shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of any Class of Certificates, or such other interest in any Class of Certificates as is set forth in an Opinion of Counsel, which shall be at no expense to the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Trust, delivered to the Trustee), provided that (i) the Trust does not receive or derive any income from such Person and (ii) the relationship between such Person and the Trust is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5); or (b) any other Person upon receipt by the Trustee of an Opinion of Counsel, which shall be at no expense to the Trustee, the Certificate Administrator or the Trust, to the effect that the taking of any action in respect of any Administered REO Property by such Person, subject to any conditions therein specified, that is otherwise herein contemplated to be taken by an Independent Contractor will not cause such Administered REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code, or cause any income realized in respect of such Administered REO Property to fail to qualify as Rents from Real Property.
“Initial Majority Subordinate Certificateholder”: RREF II CMBS AIV, LP, a Delaware limited partnership.
“Initial Resolution Period”: As defined in Section 2.03(b).
“Initial Subordinate Class Representative”: RREF II CMBS AIV, LP.
“Insolvency Event”: With respect to any Person, an Insolvency Event shall be deemed to have occurred if (A) 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, receiver, liquidator, administrator or similar official in any bankruptcy, 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 such Person and such decree or order shall have remained in force undischarged, undismissed or unstayed for a period of sixty (60) days, (B) such Person shall consent to the appointment of a conservator, receiver, liquidator, administrator
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or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to such Person or of or relating to all or substantially all of its property, or (C) such Person shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations or take any corporate action in furtherance of the foregoing.
“Institutional Accredited Investor”: An institutional investor which qualifies as an “accredited investor” within the meaning of paragraphs (1), (2), (3) or (7) of Rule 501(a) of Regulation D under the Securities Act or any entity in which all of the equity owners come within such paragraphs.
“Insurance Policy”: With respect to any Mortgage Loan or REO Property, any hazard insurance policy, terrorism insurance policy, flood insurance policy, title insurance policy, earthquake insurance policy, Environmental Insurance Policy, business interruption insurance policy or other insurance policy that is maintained from time to time in respect of such Mortgage Loan (or the related Mortgaged Property) or such REO Property, as the case may be.
“Insurance Proceeds”: Proceeds paid under any Insurance Policy and received by or on behalf of the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer (including with respect to a Non-Trust-Serviced Pooled Mortgage Loan or any related REO Property, any such proceeds remitted to the Master Servicer by the related Non-Trust Master Servicer or the related Non-Trust Special Servicer pursuant to the related Intercreditor Agreement and/or the related Non-Trust Pooling and Servicing Agreement), to the extent such proceeds are not applied to the restoration of the related Mortgaged Property or REO Property (or placed in a reserve account for that purpose) or released to the related Borrower or any other third party pursuant to the terms of the related Mortgage or lease, in accordance with the Servicing Standard.
“Insured Environmental Event”: As defined in Section 3.07(d).
“Intercreditor Agreement”: With respect to any Loan Combination, the related agreement between noteholders, intercreditor, co-lender or similar agreement in effect from time to time by and between the holders of the related Mortgage Loan and the related Pari Passu Companion Loan relating to the relative rights of such holders.
“Interest Accrual Basis”: The basis on which interest accrues in respect of any Mortgage Loan, any REMIC I Regular Interest, any REMIC II Regular Interest, any Regular Certificate, any of the Class A-S, Class B and Class C Certificates, any of the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest or any particular REMIC III Component of a Class of Interest Only Certificates, in each case consisting of one of the following: (i) a 30/360 Basis; or (ii) an Actual/360 Basis.
“Interest Accrual Period”: With respect to any REMIC I Regular Interest, any REMIC II Regular Interest, any Regular Certificate, any of the Class A-S, Class B and Class C Certificates, any of the Class A-S Regular Interest, Class B Regular Interest and Class C Regular
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Interest or any particular REMIC III Component of a Class of Interest Only Certificates, for any Distribution Date, the calendar month immediately preceding the month in which such Distribution Date occurs, and calculated assuming that each month has 30 days and each year has 360 days.
“Interest Distribution Amount”: With respect to any Class of Regular Certificates and any of the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest for any Distribution Date, an amount of interest equal to the sum of (I) the amount of Accrued Certificate Interest in respect of such Class for the related Interest Accrual Period, reduced (to not less than zero) by that portion, if any, of the Net Aggregate Prepayment Interest Shortfall for such Distribution Date allocated to such Class as provided below (such Accrued Certificate Interest, the “Unadjusted Distributable Certificate Interest” for such Class and Distribution Date) and (II) any shortfall between the amount described in clause (I) for any prior Distribution Date and the amount of interest actually distributed on such Class on such prior Distribution Date and remaining unpaid as of this Distribution Date (such amounts described in this clause (II), a “Class Interest Shortfall”); provided that such sum shall be adjusted as follows: (i) in the case of the Class B Regular Interest, the Class C Regular Interest and the Class D and E Certificates, such sum shall be reduced by the amount of Trust Advisor Expenses allocated to such Class under Section 4.05; (ii) if and to the extent that any such Trust Advisor Expenses were previously allocated to reduce such sum on the Class B Regular Interest, Class C Regular Interest and/or Class D Certificates on a prior Distribution Date, such sum shall be increased (in each case, up to the amount of the Trust Advisor Expenses previously so allocated to such Class), and such sum on the Class E Certificates and (if necessary) Class D Certificates and (if necessary) the Class C Regular Interest (in that order) will be reduced (in each case, up to such sum for such Class); (iii) if any such Trust Advisor Expenses were previously allocated to the Class B Regular Interest, Class C Regular Interest or Class D or Class E Certificates, and the expenses are subsequently recovered from a source other than the Borrowers under the Mortgage Loans or the related Mortgaged Properties, then, to the extent of any portion of such recovery remaining after application to reimburse the Holders of any Principal Balance Certificates that suffered write-offs in connection with Trust Advisor Expenses as provided in Section 4.01(a), such sums on such Classes in the aggregate will be increased by the amount of such recovery, which aggregate increase shall be allocated to the Class B Regular Interest, the Class C Regular Interest and the Class D and Class E Certificates, in that order, in each case up to the aggregate unrecovered amount of such Trust Advisor Expenses previously allocated to such Class; and (iv) if the Class Principal Balance of such Class of Regular Certificates or Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest, as applicable, is deemed to have been increased immediately prior to such Distribution Date pursuant to the proviso to the definition of “Class Principal Balance” because the Principal Distribution Amount for such Distribution Date includes any collections of amounts that (x) had previously been determined to constitute Nonrecoverable Advances, (y) were reimbursed to a party to this Agreement from the principal portions of P&I Advances and/or payments or other collections of principal on the Mortgage Pool in a Collection Period prior to the one related to such Distribution Date (pursuant to Section 3.05(a)(II)(iv)) and (z) were recovered in the Collection Period related to such Distribution Date, such sum shall be increased by interest at the Pass-Through Rate(s) applicable to such Class for the applicable Interest Accrual Periods on the amount of such increase to its Certificate Principal Balance accrued from the Distribution Date(s) on which the amount of such increase(s) were most recently written down on such Class (whether such written down amount(s) were written
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down as a result of the Realized Loss whose recovery has resulted in the increase or as a result of subsequent allocations of Realized Loss(es) unrelated to such Realized Loss whose recovery has resulted in the increase(s)) to, but not including, such current Distribution Date (such amounts described in this clause (iv), “Recovered Interest Amounts”).
For purposes of clause (I) above, the portion of the Net Aggregate Prepayment Interest Shortfall, if any, for each Distribution Date shall be allocated to each Class of Principal Balance Certificates (other than the Class A-S, Class B, Class C and Class PEX Certificates) and the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest in an amount equal to the product of (i) the amount of such Net Aggregate Prepayment Interest Shortfall and (ii) a fraction, the numerator of which is the Accrued Certificate Interest for such Class for such Distribution Date and the denominator of which is the aggregate amount of Accrued Certificate Interest for all Classes of Principal Balance Certificates (other than the Class A-S, Class B, Class C and Class PEX Certificates) and the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest for such Distribution Date. No portion of any Net Aggregate Prepayment Interest Shortfall for any Distribution Date shall be allocated to the Interest Only Certificates. Any Net Aggregate Prepayment Interest Shortfall allocated to the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest for any Distribution Date shall be allocated (i) in the case of the Class A-S Regular Interest, between the Class A-S Certificates and Class A-S-PEX Component on such Distribution Date in accordance with the Class A-S Percentage Interest for such Distribution Date and the Class A-S-PEX Percentage Interest for such Distribution Date, respectively, (ii) in the case of the Class B Regular Interest, between the Class B Certificates and Class B-PEX Component on such Distribution Date in accordance with the Class B Percentage Interest for such Distribution Date and the Class B-PEX Percentage Interest for such Distribution Date, respectively and (iii) in the case of the Class C Regular Interest, between the Class C Certificates and Class C-PEX Component on such Distribution Date in accordance with the Class C Percentage Interest for such Distribution Date and the Class C-PEX Percentage Interest for such Distribution Date, respectively.
“Interest Only Certificates”: Collectively, the Class X-A, Class X-B, Class X-E, Class X-F and Class X-G Certificates.
“Interest Reserve Account”: The segregated account (or sub-account of the Distribution Account) created and maintained by the Certificate Administrator on behalf of the Trustee, pursuant to Section 3.04(c), for the benefit of the Certificateholders, which shall be entitled “Xxxxx Fargo Bank, National Association [or the name of any successor Certificate Administrator], as Certificate Administrator, on behalf of Wilmington Trust, National Association [or the name of any successor Trustee], as Trustee, for the benefit of the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1, Interest Reserve Account”.
“Interest Reserve Amount”: With respect to each Mortgage Loan that is an Interest Reserve Loan (or the related successor REO Mortgage Loan), for any Distribution Date that occurs during February of any year or during January of any year that is not a leap year, an amount equal to one day’s interest accrued at the related Net Mortgage Rate on the related Stated Principal Balance as of the beginning of the Collection Period related to such Distribution Date,
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but prior to giving effect to the application of any amounts due on the Due Date occurring in such Collection Period, to the extent that a Monthly Payment is Received by the Trust with respect to such Interest Reserve Loan for the related Due Date in the same month as such Distribution Date on or before the related Master Servicer Remittance Date or a P&I Advance is made under this Agreement with respect to such Interest Reserve Loan by such Distribution Date. For purposes of calculating Interest Reserve Amounts, the Net Mortgage Rate for each Interest Reserve Loan shall be the Net Mortgage Rate in effect (including as a result of any step-up provision) under the original terms of such Interest Reserve Loan in effect as of the Closing Date, without regard to any modifications, extensions, waivers or amendments of such Interest Reserve Loan subsequent to the Closing Date (whether entered into by the Master Servicer, the Special Servicer, the Non-Trust Master Servicer or the Non-Trust Special Servicer or in connection with any bankruptcy, insolvency or other similar proceeding involving the related Borrower).
“Interest Reserve Loan”: Each Mortgage Loan that is an Actual/360 Mortgage Loan (or any successor REO Mortgage Loan with respect thereto).
“Interested Person”: The Depositor, the Master Servicer, the Special Servicer, any Borrower, any manager of a Mortgaged Property, any independent contractor engaged by the Special Servicer, the Trust Advisor, or, in connection with any individual Mortgage Loan or holder of a related mezzanine loan, or any known Affiliate of any such party described above.
“Interested SLC Person”: With respect to a Serviced Loan Combination, an “Interested Person” as defined in the related Intercreditor Agreement.
“Investment Account”: Each of the Collection Account, the Serviced Pari Passu Companion Loan Custodial Account (if any), the Servicing Accounts, the Reserve Accounts, the REO Account, the Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds Account.
“Investment Company Act”: The Investment Company Act of 1940, as it may be amended from time to time.
“Investment Grade Certificate”: As of any date of determination, a Certificate that is rated in one of the four highest generic rating categories by at least one Rating Agency that is defined as a “Rating Agency” under Section III of the Exemption.
“Investor-Based Exemption”: Any of Prohibited Transaction Class Exemption (“PTCE”) 84-14 (for transactions by independent “qualified professional asset managers”), XXXX 00-0 (for transactions by insurance company pooled separate accounts), PTCE 91-38 (for transactions by bank collective investment funds), PTCE 95-60 (for transactions by insurance company general accounts) or PTCE 96-23 (for transactions effected by “in-house asset managers”), or any comparable exemption available under any Similar Law.
“Investor Confidentiality Agreement”: An investor confidentiality agreement in the form of Exhibit K-3 hereto.
“Investor Q&A Forum”: As defined in Section 8.12(d).
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“Investor Registry”: As defined in Section 8.12(e).
“IRS”: The Internal Revenue Service or any successor thereto.
“Issue Price”: With respect to each Class of Certificates, the “issue price” as defined in the Code and Treasury regulations promulgated thereunder.
“Late Collections”: (a) With respect to any Mortgage Loan or Serviced Loan Combination, all amounts Received by the Trust thereon during any Collection Period, whether as payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which (as applied under Section 1.03) represent collections of the principal and/or interest portions of a Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in respect of such Mortgage Loan or Serviced Loan Combination due or deemed due on a Due Date in a previous Collection Period or on a Due Date during or prior to the month of the Cut-off Date for such Mortgage Loan or Serviced Loan Combination, and not previously Received by the Trust; and (b) with respect to any REO Mortgage Loan, all amounts Received by the Trust in connection with the related REO Property during any Collection Period, whether as Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which (as applied under Section 1.03) represent collections of the principal and/or interest portions of a Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in respect of the predecessor Mortgage Loan or Serviced Loan Combination or the principal and/or interest portions of an Assumed Monthly Payment in respect of such REO Mortgage Loan due or deemed due on a Due Date in a previous Collection Period and not previously Received by the Trust. Late Collections do not include Default Charges.
“Latest Possible Maturity Date”: With respect to any REMIC I Regular Interest, any REMIC II Regular Interest, any REMIC III Component, any Class of Regular Certificates or the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest, the “latest possible maturity date” thereof, calculated solely for purposes of satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii).
“Letter of Credit”: With respect to any Mortgage Loan or Serviced Loan Combination, any third party letter of credit delivered by or at the direction of the related Borrower pursuant to the terms of such Mortgage Loan or Serviced Loan Combination in lieu of the establishment of, or deposit otherwise required to be made into, a Reserve Fund or otherwise pledged or assigned by the related Borrower as Additional Collateral.
“Liquidation Event”: (a) With respect to any Mortgage Loan or Serviced Loan Combination, any of the following events: (i) such Mortgage Loan or Serviced Loan Combination is paid in full, (ii) a Final Recovery Determination is made with respect to such Mortgage Loan or Serviced Loan Combination, (iii) such Mortgage Loan is repurchased or replaced by a Responsible Repurchase Party pursuant to the related Mortgage Loan Purchase Agreement, as contemplated by Section 2.03, (iv) such Mortgage Loan or Serviced Loan Combination is sold pursuant to Section 3.18, (v) such Mortgage Loan is purchased by any Subordinate Class Certificateholder(s), the Master Servicer or the Special Servicer pursuant to Section 9.01, (vi) such Mortgage Loan is acquired by the Sole Certificateholder(s) in exchange for all of the Certificates pursuant to Section 9.01, (vii) such Mortgage Loan or Serviced Loan
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Combination is paid off or purchased by the holder of a related mezzanine loan or another creditor of the Borrower in connection with a Mortgage Loan default, if so permitted and set forth in the related intercreditor agreement or (viii) in the case of a Non-Trust-Serviced Pooled Mortgage Loan, such Mortgage Loan is purchased by any party pursuant to terms analogous to those set forth in the preceding clauses (a)(i), (ii), (iii), (iv), (v), (vi) or (vii) contained in the related Non-Trust Pooling and Servicing Agreement and/or the related Intercreditor Agreement; and (b) with respect to any REO Property (and the related REO Mortgage Loan), any of the following events: (i) a Final Recovery Determination is made with respect to such REO Property, (ii) such REO Property is repurchased or replaced by a Responsible Repurchase Party pursuant to the related Mortgage Loan Purchase Agreement, as contemplated by Section 2.03, (iii) such REO Property is purchased by the Master Servicer, the Special Servicer or any Subordinate Class Certificateholder(s) pursuant to Section 9.01, or (iv) in the case of any REO Property (and the related REO Mortgage Loan) related to any Non-Trust-Serviced Pooled Mortgage Loan, any event contemplated in the preceding clauses (b)(i), (ii) or (iii) occurs pursuant to the related Non-Trust Pooling and Servicing Agreement and/or the related Intercreditor Agreement, or (v) such REO Property is acquired by the Sole Certificateholder(s) in exchange for all of the Certificates pursuant to Section 9.01.
“Liquidation Expenses”: All customary, reasonable and necessary “out-of-pocket” costs and expenses due and owing (but not otherwise covered by Servicing Advances) in connection with the liquidation of any Specially Serviced Mortgage Loan or Administered REO Property pursuant to Section 3.09 or Section 3.18 (including legal fees and expenses, committee or referee fees and, if applicable, brokerage commissions and conveyance taxes).
“Liquidation Fee”: The fee designated as such in, and payable to the Special Servicer in connection with certain events in respect of a Specially Serviced Mortgage Loan or an Administered REO Property pursuant to, Section 3.11(c).
“Liquidation Fee Rate”: With respect to each Specially Serviced Mortgage Loan or Administered REO Property as to which a Liquidation Fee is payable, (a) 1.00% or (b) if such rate set forth in clause (a) above would result in an aggregate Liquidation Fee less than $25,000, then the lesser of (i) 3.00% and (ii) such lower rate as would result in an aggregate Liquidation Fee equal to $25,000; in each case as calculated prior to the application of any Offsetting Modification Fees as contemplated in Section 3.11(c).
“Liquidation Proceeds”: All cash amounts (other than Insurance Proceeds, Condemnation Proceeds and REO Revenues) Received by the Trust in connection with: (i) the liquidation of a Mortgaged Property, REO Property or other collateral constituting security for a Defaulted Mortgage Loan (including for these purposes any defaulted Non-Trust-Serviced Pooled Mortgage Loan), through trustee’s sale, foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof required to be released to the related Borrower in accordance with applicable law and/or the terms and conditions of the related Mortgage Note and Mortgage; (ii) the realization upon any deficiency judgment obtained against a Borrower; (iii) the purchase of a Defaulted Mortgage Loan by the Special Servicer, the Majority Subordinate Certificateholder(s) or any assignee of either of them pursuant to Section 3.18; (iv) the repurchase or replacement of a Mortgage Loan or REO Property by a Responsible Repurchase Party pursuant to the related Mortgage Loan Purchase Agreement as contemplated by Section
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2.03 of this Agreement; (v) the purchase of a Mortgage Loan or REO Property by the Master Servicer, the Special Servicer and/or any Subordinate Class Certificateholder(s) pursuant to Section 9.01; (vi) the acquisition of any Mortgage Loan or REO Property by the Sole Certificateholder(s) in exchange for all the Certificates pursuant to Section 9.01; (vii) the payoff or purchase of a Mortgage Loan or REO Property by the holder of a related mezzanine loan or another creditor of the Borrower in connection with a Mortgage Loan default, if so permitted and set forth in the related intercreditor agreement; (viii) the transfer of any Loss of Value Payments from the Loss of Value Reserve Fund to the Collection Account in accordance with Section 3.05(h)(iii) of this Agreement (provided that, for the purpose of determining the amount of the Liquidation Fee (if any) payable to the Special Servicer in connection with such Loss of Value Payment, the full amount of such Loss of Value Payment shall be deemed to constitute “Liquidation Proceeds” from which the Liquidation Fee (if any) is payable as of such time such Loss of Value Payment is made by the applicable Mortgage Loan Seller); or (ix) the purchase of a Non-Trust-Serviced Pooled Mortgage Loan by any party pursuant to the related Non-Trust Pooling and Servicing Agreement and/or the related Intercreditor Agreement.
“Litigation Control”: As defined in Section 3.32(a) of this Agreement.
“Loan Combination”: A Serviced Loan Combination and/or a Non-Serviced Loan Combination, as the context may require.
“Loss of Value Payment”: As defined in Section 2.03(h) of this Agreement.
“Loss of Value Reserve Fund”: The “outside reserve fund” (within the meaning of Treasury Regulations Section 1.860G-2(h)) designated as such pursuant to Section 3.04(g) of this Agreement. The Loss of Value Reserve Fund will be part of the Trust Fund but not part of any REMIC Pool.
“Majority Subordinate Certificateholder(s)”: Subject to Section 3.23(i), as of any date of determination, any single Holder or group of Holders of Certificates representing a majority of the Voting Rights allocated to the outstanding Class (if any) of Control-Eligible Certificates that (a) is the most subordinate (based on the payment priorities set forth in Section 4.01(a)) outstanding such Class and (b)(i) during a Subordinate Control Period, has a Class Principal Balance, as reduced by any Appraisal Reduction Amounts allocable thereto, that is not less than 25% of the initial Class Principal Balance of such Class, and (ii) during a Collective Consultation Period, has a Class Principal Balance, without regard to any Appraisal Reduction Amounts allocable thereto, that is not less than 25% of the initial Class Principal Balance of such Class.
For purposes of the provisions of this Agreement that require any party hereto to deliver any information to the “Majority Subordinate Certificateholder” as such, (i) all Persons that alone or together constitute the Majority Subordinate Certificateholder(s) shall be deemed (by their receipt of such information) to have agreed to the confidentiality provisions of Exhibit K-3 hereto (as if they had executed a confidentiality agreement in such form) with respect to such information, (ii) if multiple Persons are the Majority Subordinate Certificateholder(s), then only one such Person shall be entitled to receive such information at any one time, which Person shall be designated by the Majority Subordinate Certificateholder(s), and (iii) such information
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need not be so delivered (notwithstanding the provision that otherwise requires such delivery) unless such Majority Subordinate Certificateholder(s) have delivered to the party required to make such delivery a certification or other reasonable evidence of their status as the Majority Subordinate Certificateholder(s) (upon which such party shall be entitled to rely), except that such certification or evidence need not be delivered by the Initial Majority Subordinate Certificateholder, and notified such party of the electronic or other address where the applicable information should be so delivered. Once a Majority Subordinate Certificateholder has provided the information in clauses (i)-(iii) above, each of the parties to this Agreement shall be entitled to conclusively rely on such information unless the Majority Subordinate Certificateholder or a successor Majority Subordinate Certificateholder shall have (x) notified each other party to this Agreement, in writing, of a change of the Majority Subordinate Certificateholder and (y) provided the information in clauses (i)-(iii) to each of the parties to this Agreement upon which each party may conclusively rely.
“Master Servicer”: Xxxxx Fargo Bank, National Association, or any successor thereto (as master servicer) appointed as provided herein.
“Master Servicer Remittance Amount”: With respect to each Master Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the Collection Account as of 11:00 a.m., New York City time, on such Master Servicer Remittance Date, net of (b) any portion of the amounts described in clause (a) of this definition that represents one or more of the following: (i) collected Monthly Payments with respect to any Mortgage Loan that are due on a Due Date following the end of the related Collection Period, (ii) to the extent not covered by clause (i) above, any payments of principal (including Principal Prepayments) and interest, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds Received by the Trust with respect to any Mortgage Loan or REO Property after the end of the related Collection Period, (iii) any Prepayment Premiums and/or Yield Maintenance Charges Received by the Trust with respect to any Mortgage Loan or successor REO Mortgage Loan with respect thereto after the end of the related Collection Period, (iv) any Excess Liquidation Proceeds, (v) any amounts payable or reimbursable to any Person from the Collection Account pursuant to clauses (ii) through (xxii) of Section 3.05(a)(I), and (vi) any amounts deposited in the Collection Account in error; provided that the Master Servicer Remittance Amount for the Master Servicer Remittance Date that occurs in the same calendar month as the anticipated Final Distribution Date shall be calculated without regard to clauses (b)(i), (b)(ii), (b)(iii) and (b)(iv) of this definition.
“Master Servicer Remittance Date”: The Business Day immediately preceding each Distribution Date.
“Master Servicing Fee”: With respect to each Mortgage Loan, any Serviced Pari Passu Companion Loan and any successor REO Mortgage Loan with respect thereto, the fee designated as such and payable to the Master Servicer pursuant to Section 3.11(a).
“Master Servicing Fee Rate”: With respect to each Mortgage Loan and any successor REO Mortgage Loan with respect thereto, a rate per annum equal to the rate per annum specified as the “Master Servicing Fee Rate” on the Mortgage Loan Schedule, which rate (i) includes, in each such case (other than in the case of a Pari Passu Mortgage Loan), the rate at which applicable primary and sub-servicing fees and Excess Servicing Fees accrue, or (ii)
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includes, in the case of a Pari Passu Mortgage Loan, the rate at which sub-servicing fees and Excess Servicing Fees accrue.
“Material Action”: As defined in Section 3.24(c).
“Material Breach”: With respect to any Mortgage Loan, any Breach that materially and adversely affects the value of such Mortgage Loan or the interests of the Certificateholders in the affected Mortgage Loan.
“Material Document Defect”: With respect to any Mortgage Loan, any Document Defect that materially and adversely affects the value of such Mortgage Loan or the interests of the Certificateholders, or any of them, in the affected Mortgage Loan, including, but not limited to, a material and adverse effect on any of the distributions distributable with respect to any of the Certificates or on the value of those Certificates. Notwithstanding the foregoing, the absence of a Specially Designated Mortgage Loan Document following the date and under the circumstances specified with respect to such Specially Designated Mortgage Loan Document in the third to last sentence of the first paragraph of Section 2.03(b), which absence results from the failure of the related Mortgage Loan Seller to deliver such Specially Designated Mortgage Loan Document in accordance with the terms of the related Mortgage Loan Purchase Agreement, shall also constitute a Material Document Defect to the extent set forth in the related Mortgage Loan Purchase Agreement.
“Material Litigation Control Matter”: As defined in Section 3.32(a) of this Agreement.
“Modification Fees”: With respect to any Serviced Mortgage Loan or Serviced Loan Combination, any and all fees with respect to a modification, restructure, 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 Master Servicer or the Special Servicer (as applicable), other than any Assumption Fees, Assumption Application Fees, consent fees and any defeasance fee; provided that (A) in connection with each modification, restructure, extension, waiver or amendment that constitutes a workout of a Specially Serviced Mortgage Loan, the Modification Fees collected from the related Borrower will be subject to a cap of 1% of the outstanding principal balance of such Serviced Mortgage Loan or Serviced Loan Combination immediately after giving effect to such transaction; (B) the preceding clause (A) shall be construed only as a limitation on the amount of Modification Fees that may be collected in connection with each such transaction involving a Specially Serviced Mortgage Loan and not as a limitation on the cumulative amount of Modification Fees that may be collected in connection with multiple such transactions involving such Specially Serviced Mortgage Loan; and (C) for purposes of such preceding clauses (A) and (B), a Modification Fee shall be deemed to have been collected in connection with a workout of a Specially Serviced Mortgage Loan if such fee arises substantially in consideration of or otherwise in connection with such workout, whether the related Borrower must pay such fee upon the consummation of such workout and/or on one or more subsequent dates.
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“Modified Mortgage Loan”: Any Specially Serviced Mortgage Loan which has been modified by the Special Servicer pursuant to Section 3.20 in a manner that:
(a) materially affects the amount or timing of any payment of principal or interest due thereon (other than, or in addition to, bringing Monthly Payments current with respect to the Mortgage Loan or related Serviced Pari Passu Companion Loan);
(b) except as expressly contemplated by the related Mortgage Loan Documents, results in a release of the lien of the Mortgage on any material portion of the related Mortgaged Property without a corresponding Principal Prepayment in an amount, or the delivery of substitute real property collateral with a fair market value (as is), that is not less than the fair market value (as is) of the property to be released, as determined by an Appraisal delivered to the Special Servicer (at the expense of the related Borrower and upon which the Special Servicer may conclusively rely); or
(c) in the reasonable judgment of the Special Servicer, otherwise materially impairs the security for such Specially Serviced Mortgage Loan or materially reduces the likelihood of timely payment of amounts due thereon.
“Monthly Payment”: With respect to any Mortgage Loan or Serviced Pari Passu Companion Loan, as of any Due Date, the scheduled monthly debt service payment (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, the minimum monthly debt service payment required to be paid on a current basis) on such Mortgage Loan or Serviced Pari Passu Companion Loan that is actually payable by the related Borrower from time to time under the terms of the related Mortgage Note (as such terms may be changed or modified in connection with a bankruptcy or similar proceeding involving the related Borrower or by reason of a modification, extension, waiver or amendment granted or agreed to by the Master Servicer or the Special Servicer pursuant to Section 3.20 (or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, by the related Non-Trust Master Servicer or the related Non-Trust Special Servicer pursuant to the related Non-Trust Pooling and Servicing Agreement)), including any Balloon Payment payable in respect of such Mortgage Loan or Serviced Pari Passu Companion Loan on such Due Date; provided that (A) the Monthly Payment due in respect of any Mortgage Loan or Serviced Pari Passu Companion Loan shall not include Default Interest; and (B) the Monthly Payment due in respect of any ARD Mortgage Loan after its Anticipated Repayment Date shall not include Post-ARD Additional Interest.
“Moody’s”: Xxxxx’x Investors Service, Inc. or its successor-in-interest. If neither such rating agency nor any successor remains in existence, “Moody’s” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor (and such designation shall be deemed to be reasonable if the Person so designated is an NRSRO that has been regularly engaged in rating new issue commercial mortgage-backed securities transactions during the 12 months preceding the designation), notice of which designation shall be given to the other parties hereto, and specific ratings of Moody’s herein referenced shall be deemed to refer to the equivalent ratings of the party so designated. References herein to “applicable rating category” (other than such references to “highest applicable rating category”) shall, in the case of Moody’s, be deemed to refer to such applicable
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rating category of Moody’s, without regard to any plus or minus or other comparable rating qualification.
“Mortgage”: With respect to any Mortgage Loan, separately and collectively, as the context may require, each mortgage, deed of trust, deed to secure debt or similar document that secures the related Mortgage Note and creates a lien on the related Mortgaged Property.
“Mortgage File”: With respect to any Mortgage Loan or Serviced Pari Passu Companion Loan, the following documents collectively with respect to such Mortgage Loan or Serviced Pari Passu Companion Loan (which documents, in the case of each Mortgage Loan with a Serviced Pari Passu Companion Loan, except for the Mortgage Notes referred to in clause (i) below, relate to the entire Serviced Loan Combination):
(i) (A) the original executed Mortgage Note, endorsed (either on the face thereof or pursuant to a separate allonge) “Pay to the order of Wilmington Trust, National Association, as Trustee for the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1, without recourse, representation or warranty” or in blank, and further showing a complete, unbroken chain of endorsement from the originator; or alternatively, if the original executed mortgage note has been lost, a lost note affidavit and indemnity with a copy of such Mortgage Note; and (B) in the case of any Serviced Pari Passu Companion Loan, a copy of the executed Mortgage Note for such Serviced Pari Passu Companion Loan;
(ii) an original or a copy of the Mortgage, together with originals or copies of any and all intervening assignments thereof prior to the assignment to the Trustee, in each case (unless the particular item has been delivered to but not returned from the applicable recording office) with evidence of recording indicated thereon; provided that if the original or a copy of the Mortgage cannot be delivered with evidence of recording thereon on or prior to the 90th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation, or because the public recording office retains the original or because such original Mortgage has been lost, there shall be delivered to the Custodian a true and correct copy of such Mortgage, together with (A) in the case of a delay caused by the public recording office, an Officer’s Certificate of the applicable Mortgage Loan Seller or a statement from the title agent to the effect that such original Mortgage has been sent to the appropriate public recording official for recordation or (B) in the case of an original Mortgage that has been lost after recordation or retained by the appropriate public recording office, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;
(iii) the original or a copy of any related Assignment of Leases (if any such item is a document separate from the Mortgage) and, if applicable, the originals or copies of any intervening assignments thereof showing a complete chain of assignment from the originator of the Mortgage Loan or Loan
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Combination to the most recent assignee of record thereof prior to the Trustee, in each case (unless the particular item has been delivered to but not returned from the applicable recording office) with evidence of recording thereon;
(iv) except in the case of a Non-Trust-Serviced Pooled Mortgage Loan, an original executed assignment, in recordable form (except for recording information not yet available if the instrument being assigned has not been returned from the applicable recording office), of (A) the Mortgage and (B) any related Assignment of Leases (if such item is a document separate from the Mortgage), in favor of “Wilmington Trust, National Association, as Trustee for the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1”, or, in the case of any Mortgage Loan included in a Serviced Loan Combination, in favor of “Wilmington Trust, National Association, as Trustee for the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1, and in its capacity as lead lender on behalf of any Serviced Pari Passu Companion Loan Holder(s) secured by the [insert name of Mortgaged Property]” (or, in each case, a copy thereof certified to be the copy of such assignment submitted or to be submitted for recording);
(v) an original or a copy of any related Security Agreement (if such item is a document separate from the Mortgage) and, if applicable, the originals or copies of any intervening assignments thereof showing a complete chain of assignment from the originator of the Mortgage Loan or Loan Combination to the most recent assignee of record thereof prior to the Trustee, if any;
(vi) except in the case of a Non-Trust-Serviced Pooled Mortgage Loan, an original assignment of any related Security Agreement (if such item is a document separate from the Mortgage) executed by the most recent assignee of record thereof prior to the Trustee or, if none, by the originator, in favor of “Wilmington Trust, National Association, as Trustee for the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1”, or, in the case of any Mortgage Loan included in a Serviced Loan Combination, in favor of “Wilmington Trust, National Association, as Trustee for the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1, and as lead lender on behalf of any Serviced Pari Passu Companion Loan Holder(s) secured by the [insert name of Mortgaged Property]”, which assignment may be included as part of the corresponding assignment of Mortgage referred to in clause (iv) above;
(vii) originals or copies of any assumption, modification, written assurance, consolidation, extension and substitution agreements, if any, with evidence of recording thereon if the applicable document or instrument being modified or assumed, was recorded (unless the particular item has not been returned from the applicable recording office), in those instances where the terms
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or provisions of the Mortgage, Mortgage Note or any related security document have been materially modified or the Mortgage Loan has been assumed;
(viii) the original or a copy of the policy or certificate of lender’s title insurance issued in connection with such Mortgage Loan (which may be in the form of electronically issued policy) (or, if the policy has not yet been issued, an original or copy of a written commitment “marked-up” at the closing of such Mortgage Loan interim binder or the pro forma title insurance policy, in each case evidencing a binding commitment to issue such policy);
(ix) (A) filed copies (with evidence of filing) of any prior effective UCC Financing Statements in favor of the originator of such Mortgage Loan or in favor of any assignee prior to the Trustee (but only to the extent the related Mortgage Loan Seller had possession of such UCC Financing Statements prior to the Closing Date) and (B) except in the case of a Non-Trust-Serviced Pooled Mortgage Loan, an original assignment thereof, in form suitable for filing, in favor of “Wilmington Trust, National Association, as Trustee for the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1”; or, in the case of any Mortgage Loan included in a Serviced Loan Combination, in favor of “Wilmington Trust, National Association, as Trustee for the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1, and as lead lender on behalf of any Serviced Pari Passu Companion Loan Holder(s) secured by the [insert name of Mortgaged Property]” (or, in each case, a copy thereof certified to be the copy of such assignment submitted or to be submitted for filing);
(x) if a portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest, the original or a copy of the Ground Lease or Space Lease relating to such Mortgage Loan, together with a notice to the related lessor of the transfer of the Mortgage Loan to the Trust or the Trustee on its behalf;
(xi) except in the case of a Non-Trust-Serviced Pooled Mortgage Loan, any original documents not otherwise described in the preceding clauses of this definition relating to, evidencing or constituting Additional Collateral (except that, in the case of such documents, if any, that are in the form of a Letter of Credit, the “Mortgage File” shall initially contain a copy of such Letter of Credit and the original of such Letter of Credit shall initially be delivered to the Master Servicer and, thereafter, such original shall be maintained by the Master Servicer) and, if applicable, the originals or copies of any intervening assignments thereof;
(xii) an original or a copy of the loan agreement, if any, related to such Mortgage Loan;
(xiii) an original or a copy of the related guaranty of payment under such Mortgage Loan, if any;
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(xiv) an original or a copy of the lock-box agreement or cash management agreement relating to such Mortgage Loan, if any;
(xv) an original or a copy of the environmental indemnity from the related Borrower or other party, if any;
(xvi) an original or a copy of any intercreditor agreement or similar agreement relating to such Mortgage Loan (including, in the case of each Mortgage Loan that is included in a Loan Combination, the related Intercreditor Agreement);
(xvii) an original or a copy of any management agreement with respect to the related Mortgaged Property if the manager thereunder is not an Affiliate of the Borrower and the initial Stated Principal Balance of such Mortgage Loan is greater than $20,000,000;
(xviii) an original or a copy of any master operating lease with respect to the related Mortgaged Property;
(xix) an original or a copy of any related Environmental Insurance Policy;
(xx) if the related Mortgaged Property is a hospitality property that is subject to a franchise, management or similar arrangement, (a) an original or a copy of any franchise, management or similar agreement; (b) either (i) a signed copy of the estoppel certificate or comfort letter delivered by the franchisor, manager or similar person, as applicable, for the benefit of the holder of the Mortgage Loan in connection with the Mortgage Loan Seller’s origination or acquisition of the Mortgage Loan or Loan Combination, together with such instrument(s) of notice or transfer (if any) as are necessary to (A) transfer or assign to the Trust or the Trustee the benefits of such estoppel certificate or comfort letter or (B) request the issuance of a new estoppel certificate or comfort letter for the benefit of the Trust or the Trustee, or (ii) a copy of the estoppel certificate or comfort letter delivered by the franchisor, manager or similar person, as applicable, for the benefit of the holder of the Mortgage Loan in connection with such origination or acquisition of the Mortgage Loan or Loan Combination, together with a signed copy or a fax copy of a new estoppel certificate or comfort letter (in substantially the same form and substance as the estoppel certificate or comfort letter delivered in connection with such origination or acquisition) by the franchisor, manager or similar person, as applicable, for the benefit of the Trust or the Trustee (and, if a fax copy of a new estoppel certificate or comfort letter is delivered, then the original copy shall be included in the “Mortgage File” promptly following receipt thereof by the related Mortgage Loan Seller); and (c) a copy of an instrument in which the Mortgage Loan Seller notifies the franchisor, manager or similar person, as applicable, of the transfer of such Mortgage Loan (and the related estoppel certificate or comfort letter) to the Trust pursuant to the related Mortgage Loan Purchase Agreement and this
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Agreement and directs such Person to deliver any and all notice of default or other correspondence under the related estoppel certificate or comfort letter to the Master Servicer, together with reasonable evidence of the delivery of such instrument to such franchisor, manager or similar person; and
(xxi) a checklist (a “Mortgage File Checklist”) of the applicable documents described above and delivered in connection with the origination of such Mortgage Loan (which checklist may be in a reasonable form selected by the related Mortgage Loan Seller);
provided that (A) whenever the term “Mortgage File” is used to refer to documents actually received by the Custodian, such term shall not be deemed to include such documents required to be included therein unless they are actually so received, and with respect to any receipt or certification by the Custodian for documents described in clauses (vi), (vii) and (ix) through (xx) of this definition, shall be deemed to include such documents only to the extent the Custodian has actual knowledge of their existence (and the Custodian shall be deemed to have actual knowledge of the existence of any document listed on the related Mortgage File Checklist); (B) the “Mortgage File” for each Mortgage Loan that consists of a Mortgage Loan in a Serviced Loan Combination shall include the documents described above with respect to such Serviced Loan Combination, together with the original or a copy of the Intercreditor Agreement relating to such Mortgage Loan and a photocopy of the executed promissory note evidencing each related Serviced Pari Passu Companion Loan; (C) with respect to each Non-Trust-Serviced Pooled Mortgage Loan, (1) any documents required by clauses (ii)-(xx) of this definition to be included in the Mortgage File need only be copies, (2) any reference in such clauses to the Master Servicer, the Trustee or the Trust (including, without limitation, as the assignee or transferee of any assignment, UCC financing statement or other transfer document or the beneficiary of any document or instrument) shall mean the related Non-Trust Master Servicer, the related Non-Trust Trustee or the trust established under the related Non-Trust Pooling and Servicing Agreement, and (3) no document or instrument referred to in such clauses need reflect any evidence of filing or recordation in the name of such related Non-Trust Trustee or such trust established under the related Non-Trust Pooling and Servicing Agreement; and (D) in connection with the Eastgate One Phases I-VII & XII Mortgage Loan, the Eastgate Two Phases VIII-X Mortgage Loan and the Gateway Portfolio Mortgage Loan, notwithstanding any contrary provision set forth herein, (1) instruments of assignment may be in blank and need not be recorded pursuant to this Agreement until the earlier of (i) the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date or the Gateway Portfolio Pari Passu Companion Loan Securitization Date, as applicable, in which case such instruments shall be assigned and recorded in accordance with the related Non-Trust Pooling and Servicing Agreement, (ii) the Eastgate One Phases I-VII & XII Pari Passu Companion Loan, the Eastgate Two Phases VIII-X Pari Passu Companion Loan or the Gateway Portfolio Pari Passu Companion Loan becomes a specially serviced loan prior to the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date or the Gateway Portfolio Pari Passu Companion Loan Securitization Date, as applicable, and (iii) the expiration of 120 days following the Closing Date, in which case assignments and recordations shall be effected in accordance with the provisions relating to the Serviced Loan Combination until the occurrence, if any, of the Eastgate One Phases I-VII & XII Pari Passu
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Companion Loan Securitization Date, the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date or the Gateway Portfolio Pari Passu Companion Loan Securitization Date, as applicable, and (2) following the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date or the Gateway Portfolio Pari Passu Companion Loan Securitization Date, as applicable, the Person selling such Pari Passu Companion Loan to the Non-Trust Depositor, at its sole cost and expense will be (a) entitled to direct the Trustee or Custodian to deliver the originals of all mortgage loan documents in its possession (other than the Mortgage Note evidencing the Eastgate One Phases I-VII & XII Mortgage Loan, the Eastgate Two Phases VIII-X Mortgage Loan or the Gateway Portfolio Mortgage Loan, as applicable) to the Non-Trust Trustee or Non-Trust Custodian therefor, (b) if the right under clause (a) is exercised, required to cause the retention by or delivery to the Trustee or Custodian of photocopies of the Mortgage Loan Documents so delivered to such Non-Trust Trustee or Non-Trust Custodian, (c) entitled to cause the completion and recordation of instruments of assignment in the name of such Non-Trust Trustee or Non-Trust Custodian, and (d) if the right under clause (c) is exercised, required to deliver to the Trustee or Custodian photocopies of any instruments of assignment so completed and recorded.
“Mortgage File Checklist”: As defined in clause (xxi) of the definition of “Mortgage File”.
“Mortgage Loan”: Each of the Original Mortgage Loans and Replacement Mortgage Loans that are from time to time held in the Trust Fund. As used herein, the term “Mortgage Loan” includes the interest of the Trust Fund in the related Mortgage Loan Documents and each Non-Trust-Serviced Pooled Mortgage Loan, but does not include any Pari Passu Companion Loan.
“Mortgage Loan Documents”: With respect to any Mortgage Loan or Serviced Pari Passu Companion Loan, the documents included or required to be included, as the context may require, in the related Mortgage File and Servicing File.
“Mortgage Loan Purchase Agreement”: Any of (i) the Mortgage Loan Purchase Agreement dated as of the Pricing Date, between WFB, as seller, and the Depositor, as purchaser; and (ii) the Mortgage Loan Purchase Agreement dated as of the Pricing Date, between Natixis, as seller, and the Depositor, as purchaser.
“Mortgage Loan Schedule”: The schedule of Mortgage Loans attached hereto as Schedule I, as any such schedule may be amended from time to time in accordance with this Agreement. Such schedule shall set forth the following information with respect to each Mortgage Loan:
(i) the identification number assigned to the Mortgage Loan in the Prospectus Supplement;
(ii) the name of the Mortgage Loan/Mortgaged Property;
(iii) the street address (including city, state and zip code) of the related Mortgaged Property;
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(iv) (A) the original principal balance and (B) the Cut-off Date Principal Balance;
(v) the “Monthly P&I Payment”, as described in Annex A-1 to the Prospectus Supplement;
(vi) the Mortgage Rate as of the Closing Date and the Interest Accrual Basis;
(vii) (a) the Stated Maturity Date or, in the case of an ARD Mortgage Loan, the Anticipated Repayment Date, and (b) the original and remaining term to the Stated Maturity Date or Anticipated Repayment Date, as applicable;
(viii) in the case of a Mortgage Loan that is a Balloon Mortgage Loan, the original and remaining amortization term;
(ix) whether such Mortgage Loan is a Cross-Collateralized Mortgage Loan and, if so, an identification of the Mortgage Loans with which such Mortgage Loan is cross-collateralized;
(x) whether such Mortgage Loan provides for defeasance and if so, the period during which defeasance may occur and the periods when any Principal Prepayments must be accompanied by any Prepayment Premium or Yield Maintenance Charge;
(xi) whether such Mortgage Loan is secured by a fee simple interest in the related Mortgaged Property; by the Borrower’s leasehold interest, and a fee simple interest, in the related Mortgaged Property; or solely by a leasehold interest in the related Mortgaged Property;
(xii) the name of the related Mortgage Loan Seller;
(xiii) the Administrative Fee Rate;
(xiv) the Due Date;
(xv) the number of grace days before such Mortgage Loan requires a late payment charge in connection with a delinquent Monthly Payment;
(xvi) whether there exists (and, if so, the amount of) any Letter of Credit that constitutes Additional Collateral;
(xvii) the related Borrower; and
(xviii) the Master Servicing Fee Rate.
“Mortgage Loan Sellers”: Collectively, Natixis and WFB.
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“Mortgage Note”: The original executed promissory note(s) evidencing the indebtedness of a Borrower under a Mortgage Loan, together with any rider, addendum or amendment thereto, or any renewal, substitution or replacement of such note.
“Mortgage Pool”: All of the Mortgage Loans and any successor REO Mortgage Loans, collectively, as of any particular date of determination.
“Mortgage Rate”: With respect to each Mortgage Loan or Serviced Pari Passu Companion Loan (and any successor REO Mortgage Loan with respect thereto), the related annualized rate at which interest (including, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, Post-ARD Additional Interest) is scheduled (in the absence of a default) to accrue on such Mortgage Loan or Serviced Pari Passu Companion Loan from time to time in accordance with the related Mortgage Note and applicable law, as such rate may be modified in accordance with Section 3.20 (or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, by the related Non-Trust Master Servicer or the related Non-Trust Special Servicer in accordance with the related Non-Trust Pooling and Servicing Agreement) or in connection with a bankruptcy, insolvency or similar proceeding involving the related Borrower. In the case of each ARD Mortgage Loan, the related Mortgage Rate shall increase in accordance with the related Mortgage Note if such ARD Mortgage Loan is not paid in full on or before its Anticipated Repayment Date.
“Mortgaged Property”: Individually and collectively, as the context may require, each real property (together with all improvements and fixtures thereon) subject to the lien of a Mortgage and constituting collateral for a Mortgage Loan or Loan Combination, as applicable. With respect to any Cross-Collateralized Mortgage Loan, if and when the context may require, “Mortgaged Property” shall mean, collectively, all the mortgaged real properties (together with all improvements and fixtures thereon) securing the relevant Cross-Collateralized Group.
“Mortgagee”: The holder of legal title to any Mortgage Loan or Serviced Pari Passu Companion Loan, together with any third parties through which such holder takes actions with respect to such Mortgage Loan or Serviced Pari Passu Companion Loan.
“Natixis”: Natixis Real Estate Capital LLC, a Delaware limited liability company.
“Natixis Securities”: Natixis Securities Americas LLC.
“Net Aggregate Prepayment Interest Shortfall”: With respect to any Distribution Date, the amount, if any, by which (a) the aggregate of all Prepayment Interest Shortfalls incurred in connection with the receipt of Principal Prepayments (and prepayment resulting from the receipt of Insurance Proceeds or Condemnation Proceeds) on the Mortgage Loans during the related Collection Period, exceeds (b) the aggregate amount of the Compensating Interest Payments remitted by the Master Servicer pursuant to Section 3.19(c) on the Master Servicer Remittance Date related to such Distribution Date.
“Net Default Charges”: With respect to any Mortgage Loan, Serviced Loan Combination or successor REO Mortgage Loan, the Default Charges referred to in clause third of Section 3.25(a) or clause fourth of Section 3.25(c), which are payable to the Master Servicer
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as Additional Master Servicing Compensation or the Special Servicer as Additional Special Servicing Compensation.
“Net Investment Earnings”: With respect to any Investment Account for any Collection Period, the amount, if any, by which the aggregate of all interest and other income realized during such Collection Period on funds held in such Investment Account (exclusive, in the case of a Servicing Account or a Reserve Account, of any portion of such interest or other income payable to a Borrower in accordance with the related Mortgage Loan Documents and applicable law), exceeds the aggregate of all losses and costs, if any, incurred during such Collection Period in connection with the investment of such funds in accordance with Section 3.06 (exclusive, in the case of a Servicing Account or a Reserve Account, of any portion of such losses that were incurred in connection with investments made for the benefit of a Borrower).
“Net Investment Loss”: With respect to any Investment Account for any Collection Period, the amount by which the aggregate of all losses, if any, incurred during such Collection Period in connection with the investment of funds held in such Investment Account for the benefit of the Master Servicer, the Special Servicer or the Certificate Administrator, as applicable, in accordance with Section 3.06 (exclusive, in the case of a Servicing Account or a Reserve Account, of any portion of such losses that were incurred in connection with investments made for the benefit of a Borrower, and other than losses of what would otherwise have constituted interest or other income earned on such funds), exceeds the aggregate of all interest and other income realized during such Collection Period in connection with the investment of such funds for the benefit of the Master Servicer, the Special Servicer or the Certificate Administrator, as applicable, in accordance with Section 3.06; provided that, in the case of any Investment Account and any particular investment of funds in such Investment Account, Net Investment Loss shall not include any loss with respect to such investment which is incurred solely as a result of the insolvency of the federal or state chartered depositary institution or trust company at which such Investment Account is maintained, so long as such depositary institution or trust company (a) satisfied the qualifications set forth in the definition of “Eligible Account” both at the time such investment was made and as of a date not more than thirty (30) days prior to the date of such loss and (b) is not the same Person as the Person that made the relevant investment.
“Net Liquidation Proceeds”: The excess, if any, of all Liquidation Proceeds Received by the Trust with respect to any particular Specially Serviced Mortgage Loan or Administered REO Property, over the amount of all Liquidation Expenses (other than, with respect to any Serviced Loan Combination, the pro rata share of such Liquidation Expenses reimbursable to the parties hereto by the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement) incurred with respect thereto and all related Servicing Advances (other than, with respect to any Serviced Loan Combination, the pro rata share of such Servicing Advances reimbursable to the parties hereto by the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement) reimbursable therefrom.
“Net Mortgage Rate”: With respect to (i) any Mortgage Loan (or any successor REO Mortgage Loan with respect thereto), the rate per annum equal to (a) the related Mortgage Rate minus (b) the related Administrative Fee Rate minus (c) in the case of an ARD Mortgage
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Loan after its Anticipated Repayment Date, the related Post-ARD Additional Interest Rate and (ii) any Serviced Pari Passu Companion Loan (or any successor REO Mortgage Loan with respect thereto), the rate per annum equal to (a) the related Mortgage Rate minus (b) the related Serviced Pari Passu Companion Loan Administrative Fee Rate minus (c) in the case of a Serviced Pari Passu Companion Loan related to an ARD Mortgage Loan after its Anticipated Repayment Date, the related Post-ARD Additional Interest Rate.
“New Lease”: Any lease of an Administered REO Property entered into at the direction of the Special Servicer, including any lease renewed, modified or extended on behalf of the Trust if the Special Servicer has the power to renegotiate the terms of such lease.
“Non-Registered Certificate”: Any Certificate that has not been subject to registration under the Securities Act. As of the Closing Date, the Class X-E, Class X-F, Class X-G, Class D, Class E, Class F, Class G, Class R and Class V Certificates are Non-Registered Certificates.
“Non-Serviced Loan Combination”: Any mortgage loan not serviced under this Agreement that is divided into one or more notes, which includes a mortgage note that is included in the Trust and one or more pari passu mortgage notes not included in the Trust. References herein to a Non-Serviced Loan Combination shall be construed to refer to the aggregate indebtedness under the related notes. The 000 Xxxx 00xx Xxxxxx Loan Combination shall be a Non-Serviced Loan Combination. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the Eastgate One Phases I-VII & XII Loan Combination shall be a Non-Serviced Loan Combination. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the Eastgate Two Phases VIII-X Loan Combination shall be a Non-Serviced Loan Combination. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the Gateway Portfolio Loan Combination shall be a Non-Serviced Loan Combination.
“Non-Serviced Pari Passu Companion Loan”: With respect to each Non-Serviced Loan Combination, if any, a mortgage loan not included in the Trust that is generally payable on a pari passu basis with the related Non-Trust-Serviced Pooled Mortgage Loan. The 000 Xxxx 00xx Xxxxxx Pari Passu Companion Loan shall be a Non-Serviced Pari Passu Companion Loan. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the Eastgate One Phases I-VII & XII Pari Passu Companion Loan shall be a Non-Serviced Pari Passu Companion Loan. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the Eastgate Two Phases VIII-X Pari Passu Companion Loan shall be a Non-Serviced Pari Passu Companion Loan. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the Gateway Portfolio Pari Passu Companion Loan shall be a Non-Serviced Pari Passu Companion Loan.
“Non-Serviced Pari Passu Companion Loan Holder”: The holder of the promissory note evidencing any Non-Serviced Pari Passu Companion Loan.
“Non-Trust Certificate Administrator”: With respect to each Non-Trust-Serviced Pooled Mortgage Loan, if any, the certificate administrator under the related Non-Trust Pooling and Servicing Agreement. The certificate administrator, if any, under the Non-Trust Pooling and
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Servicing Agreement relating to the 000 Xxxx 00xx Xxxxxx Mortgage Loan shall be a Non-Trust Certificate Administrator. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the certificate administrator, if any, under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Certificate Administrator. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the certificate administrator, if any, under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Certificate Administrator. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the certificate administrator, if any, under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Certificate Administrator.
“Non-Trust Custodian”: With respect to each Non-Trust-Serviced-Pooled Mortgage Loan, if any, the custodian under the related Non-Trust Pooling and Servicing Agreement. The custodian, if any, under the Non-Trust Pooling and Servicing Agreement relating to the 000 Xxxx 00xx Xxxxxx Mortgage Loan shall be a Non-Trust Custodian. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the custodian, if any, under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Custodian. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the custodian, if any, under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Custodian. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the custodian, if any, under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Custodian.
“Non-Trust Depositor”: With respect to each Non-Trust-Serviced Pooled Mortgage Loan, if any, the depositor under the related Non-Trust Pooling and Servicing Agreement. The depositor under the Non-Trust Pooling and Servicing Agreement relating to the 000 Xxxx 00xx Xxxxxx Mortgage Loan shall be a Non-Trust Depositor. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the depositor under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Depositor. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the depositor under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Depositor. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the depositor under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Depositor.
“Non-Trust Master Servicer”: With respect to each Non-Trust-Serviced Pooled Mortgage Loan, if any, the master servicer under the related Non-Trust Pooling and Servicing Agreement. The applicable master servicer under the Non-Trust Pooling and Servicing Agreement relating to the 000 Xxxx 00xx Xxxxxx Mortgage Loan shall be a Non-Trust Master Servicer. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the master servicer under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Master Servicer. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the master servicer under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Master Servicer. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the master servicer under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Master Servicer.
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“Non-Trust Paying Agent”: With respect to each Non-Trust-Serviced Pooled Mortgage Loan, if any, the paying agent under the related Non-Trust Pooling and Servicing Agreement. The paying agent, if any, under the Non-Trust Pooling and Servicing Agreement relating to the 000 Xxxx 00xx Xxxxxx Mortgage Loan shall be a Non-Trust Paying Agent. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the paying agent, if any, under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Paying Agent. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the paying agent, if any, under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Paying Agent. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the paying agent, if any, under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Paying Agent.
“Non-Trust Pooling and Servicing Agreement”: With respect to each Non-Trust-Serviced Pooled Mortgage Loan, if any, the separate agreement pursuant to which such Non-Trust-Serviced Pooled Mortgage Loan and the related Non-Serviced Pari Passu Companion Loans are (or, if applicable, any related REO Property is) to be principally serviced and administered. Each pooling and servicing agreement pursuant to which the 000 Xxxx 00xx Xxxxxx Loan Combination is serviced, which, prior to the securitization of the 000 Xxxx 00xx Xxxxxx Controlling Pari Passu Companion Loan, is the COMM 2015-DC1 Pooling and Servicing Agreement, shall be a Non-Trust Pooling and Servicing Agreement. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the agreement pursuant to which the Eastgate One Phases I-VII & XII Loan Combination is serviced shall be a Non-Trust Pooling and Servicing Agreement. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the agreement pursuant to which the Eastgate Two Phases VIII-X Loan Combination is serviced shall be a Non-Trust Pooling and Servicing Agreement. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the agreement pursuant to which the Gateway Portfolio Loan Combination is serviced shall be a Non-Trust Pooling and Servicing Agreement.
“Non-Trust Primary Servicing Fee”: With respect to each Non-Trust-Serviced Pooled Mortgage Loan, if any, the primary servicing fee that is payable to the Non-Trust Master Servicer under the Non-Trust Pooling and Servicing Agreement in respect of such Non-Trust-Serviced Pooled Mortgage Loan, which such fee shall accrue at the applicable Pari Passu Primary Servicing Fee Rate.
“Non-Trust-Serviced Pooled Mortgage Loan”: Any Mortgage Loan that is primarily serviced and administered under the pooling and servicing agreement for another commercial mortgage securitization trust. The 000 Xxxx 00xx Xxxxxx Mortgage Loan shall be a Non-Trust-Serviced Pooled Mortgage Loan. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the Eastgate One Phases I-VII & XII Mortgage Loan shall be a Non-Trust-Serviced Pooled Mortgage Loan. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the Eastgate Two Phases VIII-X Mortgage Loan shall be a Non-Trust-Serviced Pooled Mortgage Loan. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the Gateway Portfolio Mortgage Loan shall be a Non-Trust-Serviced Pooled Mortgage Loan.
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“Non-Trust Special Servicer”: With respect to each Non-Trust-Serviced Pooled Mortgage Loan, if any, the special servicer under the related Non-Trust Pooling and Servicing Agreement. The applicable special servicer under the Non-Trust Pooling and Servicing Agreement relating to the 000 Xxxx 00xx Xxxxxx Mortgage Loan shall be a Non-Trust Special Servicer. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the special servicer under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Special Servicer. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the special servicer under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Special Servicer. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the special servicer under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Special Servicer.
“Non-Trust Subordinate Class Representative”: With respect to each Non-Trust-Serviced Pooled Mortgage Loan, the “Subordinate Class Representative” (or other similar term) as defined under the related Non-Trust Pooling and Servicing Agreement. The “Subordinate Class Representative” (or other similar term) under the Non-Trust Pooling and Servicing Agreement relating to the 000 Xxxx 00xx Xxxxxx Mortgage Loan shall be a Non-Trust Subordinate Class Representative. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the “Subordinate Class Representative” (or other similar term) under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Subordinate Class Representative. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the “Subordinate Class Representative” (or other similar term) under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Subordinate Class Representative. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the “Subordinate Class Representative” (or other similar term) under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Subordinate Class Representative.
“Non-Trust Tax Administrator”: With respect to each Non-Trust-Serviced Pooled Mortgage Loan, if any, the tax administrator under the related Non-Trust Pooling and Servicing Agreement. The tax administrator, if any, under the Non-Trust Pooling and Servicing Agreement relating to the 000 Xxxx 00xx Xxxxxx Mortgage Loan shall be a Non-Trust Tax Administrator. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the tax administrator, if any, under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Tax Administrator. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the tax administrator, if any, under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Tax Administrator. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the tax administrator, if any, under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Tax Administrator.
“Non-Trust Trust Advisor”: With respect to each Non-Trust-Serviced Pooled Mortgage Loan, if any, the trust advisor under the related Non-Trust Pooling and Servicing Agreement. The trust advisor or operating advisor, as applicable, under the Non-Trust Pooling and Servicing Agreement relating to the 000 Xxxx 00xx Xxxxxx Mortgage Loan shall be a Non-Trust Trust Advisor. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the trust advisor under the related Non-Trust Pooling and Servicing
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Agreement shall be a Non-Trust Trust Advisor. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the trust advisor under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Trust Advisor. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the trust advisor under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Trust Advisor.
“Non-Trust Trustee”: With respect to each Non-Trust-Serviced Pooled Mortgage Loan, if any, the trustee under the related Non-Trust Pooling and Servicing Agreement. The trustee under the Non-Trust Pooling and Servicing Agreement relating to the 000 Xxxx 00xx Xxxxxx Mortgage Loan shall be a Non-Trust Trustee. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the trustee under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Trustee. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the trustee under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Trustee. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the trustee under the related Non-Trust Pooling and Servicing Agreement shall be a Non-Trust Trustee.
“Non-United States Tax Person”: Any Person other than a United States Tax Person.
“Non-WFB Mortgage Loans”: Each of the Mortgage Loans other than the WFB Mortgage Loans.
“Nonrecoverable Advance”: Any Nonrecoverable P&I Advance (including any Unliquidated Advance that constitutes a Nonrecoverable P&I Advance) or Nonrecoverable Servicing Advance (including any Unliquidated Advance that constitutes a Nonrecoverable Servicing Advance). Workout-Delayed Reimbursement Amounts shall constitute Nonrecoverable Advances only when the Person making such determination in accordance with the procedures specified herein, and taking into account factors such as all other outstanding Advances, either (a) has determined that such Workout-Delayed Reimbursement Amounts, would not ultimately be recoverable from Late Collections, Default Charges, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or any other recovery on or in respect of such Mortgage Loan or the related REO Property (without giving effect to potential recoveries on deficiency judgments or recoveries from guarantors), or (b) has determined that such Workout-Delayed Reimbursement Amount, along with any other Workout-Delayed Reimbursement Amounts (that have not been reimbursed to the party that made such Advance) or unreimbursed Nonrecoverable Advances, would not be ultimately recoverable from the principal portion of future general collections on the Mortgage Loans and REO Properties. The determination as to the recoverability of any servicing advance previously made or proposed to be made with respect to any Non-Trust-Serviced Pooled Mortgage Loan shall be made by the related Non-Trust Master Servicer or Non-Trust Special Servicer, as the case may be, pursuant to the related Non-Trust Pooling and Servicing Agreement, and any such determination so made shall be conclusive and binding upon the Trust and the Certificateholders.
“Nonrecoverable P&I Advance”: As evidenced by the Officer’s Certificate and supporting documentation contemplated by Section 4.03(c), any P&I Advance, or any Unliquidated Advance in respect of a prior P&I Advance, previously made and any P&I
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Advance contemplated to be made in respect of any Mortgage Loan or related successor REO Mortgage Loan that, as determined by the Master Servicer or, if applicable, by the Trustee, or by the Special Servicer pursuant to the second paragraph of Section 4.03(c), subject to the Servicing Standard, or, with respect to the Trustee, in its reasonable, good faith judgment, will not be ultimately recoverable, or in fact was not ultimately recovered, from Late Collections, Default Charges, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or any other recovery on or in respect of such Mortgage Loan or the related REO Property (without giving effect to potential recoveries on deficiency judgments or recoveries from guarantors). In the case of a Cross-Collateralized Mortgage Loan, such recoverability determination shall take into account the cross-collateralization of the related Cross-Collateralized Group.
“Nonrecoverable Servicing Advance”: As evidenced by the Officer’s Certificate and supporting documentation contemplated by Section 3.11(h), any Servicing Advance, or any Unliquidated Advance in respect of a prior Servicing Advance, previously made, and any Servicing Advance proposed to be made, in respect of any Serviced Mortgage Loan, Serviced Loan Combination or Administered REO Property that, as determined by the Master Servicer or, if applicable or the Trustee, or by the Special Servicer pursuant to Section 3.11, subject to the Servicing Standard, or, with respect to the Trustee, in its reasonable, good faith judgment, will not be ultimately recoverable, or in fact was not ultimately recovered, from Late Collections, Default Charges, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or any other recovery on or in respect of such Serviced Mortgage Loan, Serviced Loan Combination or such Administered REO Property (without giving effect to potential recoveries on deficiency judgments or recoveries from guarantors). In the case of a Cross-Collateralized Mortgage Loan, such recoverability determination shall take into account the cross-collateralization of the related Cross-Collateralized Group.
“NRSRO”: A nationally recognized statistical rating organization (as such term is defined in Section 3(a)(62) of the Exchange Act); provided that, when referred to in connection with the Certificate Administrator’s Website or the Rule 17g-5 Information Provider’s Website, “NRSRO” shall mean a nationally recognized statistical rating organization that has delivered an NRSRO Certification.
“NRSRO Certification”: A certification executed (or submitted electronically by means of a click-through confirmation on the Rule 17g-5 Information Provider’s Website) by an NRSRO in favor of the Rule 17g-5 Information Provider substantially in the form attached as Exhibit P hereto (which may also be submitted electronically via the Rule 17g-5 Information Provider’s Website) that states that such NRSRO is a Rating Agency, or that (i) such NRSRO has provided the Depositor with the appropriate certifications under Rule 17g-5(e), (ii) such NRSRO has access to the Depositor’s 17g-5 website and (iii) such NRSRO shall keep the information obtained from the Depositor’s 17g-5 website confidential. Each NRSRO shall be deemed to recertify to the foregoing each time it accesses the Certificate Administrator’s Website. An NRSRO Certification will be deemed to have been executed by an NRSRO if the Depositor so directs the Rule 17g-5 Information Provider.
“Officer’s Certificate”: A certificate signed by a Servicing Officer of the Master Servicer or Special Servicer or a Responsible Officer of the Certificate Administrator or the Trustee, as the case may be, or, with respect to any other Person, a certificate signed by any of
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the Chairman of the Board, the Vice Chairman of the Board, the President, any Vice President, Director or Managing Director, an Assistant Vice President or any other authorized officer (however denominated) or another officer customarily performing functions similar to those performed by any of the above designated officers or, 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.
“Offsetting Modification Fees”: For purposes of any Workout Fee or Liquidation Fee payable to the Special Servicer in connection with any Serviced Mortgage Loan, Serviced Loan Combination or REO Mortgage Loan (other than any Non-Trust-Serviced Pooled Mortgage Loan), any and all Modification Fees collected by the Special Servicer as Additional Special Servicing Compensation to the extent that:
(i) such Modification Fees were earned and collected by the Special Servicer either (A) in connection with the workout or liquidation (including partial liquidation) of the Specially Serviced Mortgage Loan or REO Mortgage Loan (other than any Non-Trust-Serviced Pooled Mortgage Loan) as to which such Workout Fee or Liquidation Fee became payable or (B) in connection with the immediately prior workout of such Mortgage Loan or Serviced Loan Combination while it was previously a Specially Serviced Mortgage Loan, provided that (in the case of this clause (B)) the Servicing Transfer Event that resulted in it again becoming a Specially Serviced Mortgage Loan occurred within twelve (12) months following the consummation of such prior workout and provided, further, that there shall be deducted from the Offsetting Modification Fees otherwise described in this clause (i) an amount equal to that portion of such Modification Fees that were previously applied to actually reduce the payment of a Workout Fee or Liquidation Fee; and
(ii) such Modification Fees were earned in connection with a modification, extension, waiver or amendment of such Mortgage Loan or Serviced Loan Combination at a time when such Mortgage Loan or Serviced Loan Combination was a Specially Serviced Mortgage Loan.
“Offshore Transaction”: Any “offshore transaction” as defined in Rule 902(h) of Regulation S.
“Opinion of Counsel”: A written opinion of counsel (who must, in the case of any such opinion relating to the taxation of the Trust Fund or any portion thereof, the status of any REMIC Pool as a REMIC or the Grantor Trust Pool as a Grantor Trust for taxation purposes or a resignation under Section 6.04, be Independent counsel, but who otherwise may be salaried counsel for the Depositor, the Certificate Administrator, the Trustee, the Trust Advisor, the Tax Administrator, the Master Servicer or the Special Servicer), which written opinion is acceptable and delivered to the addressee(s) thereof and which opinion of counsel, except as provided herein, shall not be at the expense of the Certificate Administrator, the Trustee or the Trust Fund.
“Opting-Out Party”: As defined in Section 3.23(i).
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“Original Mortgage Loans”: The mortgage loans initially identified on Schedule I, including each Non-Trust-Serviced Pooled Mortgage Loan. No Pari Passu Companion Loan is an “Original Mortgage Loan”.
“Other Crossed Loans”: As defined in Section 2.03(b).
“Other Depositor”: The applicable other “depositor” under an Other Pooling and Servicing Agreement relating to a Serviced Pari Passu Companion Loan.
“Other Master Servicer”: The applicable other “master servicer” under an Other Pooling and Servicing Agreement relating to a Serviced Pari Passu Companion Loan.
“Other Pooling and Servicing Agreement”: The pooling and servicing agreement relating to an Other Securitization.
“Other Securitization”: Any commercial mortgage securitization trust that holds a Serviced Pari Passu Companion Loan or any successor REO Mortgage Loan with respect thereto.
“Other Special Servicer”: The applicable other “special servicer” under an Other Pooling and Servicing Agreement relating to a Serviced Pari Passu Companion Loan.
“Other Trustee”: The applicable other “trustee” under an Other Pooling and Servicing Agreement relating to a Serviced Pari Passu Companion Loan.
“OTS”: The Office of Thrift Supervision or any successor thereto.
“Ownership Interest”: In the case of any Certificate, any ownership or security interest in such Certificate as the Holder thereof and any other interest therein, whether direct or indirect, legal or beneficial, as owner or as pledgee.
“P&I Advance”: With respect to any Mortgage Loan or REO Mortgage Loan (including a Non-Trust-Serviced Pooled Mortgage Loan or any successor REO Mortgage Loan thereto), any advance made by the Master Servicer or the Trustee pursuant to Section 4.03.
“P&I Advance Date”: The Business Day preceding each Distribution Date.
“Pari Passu Companion Loan”: A Serviced Pari Passu Companion Loan and/or a Non-Serviced Pari Passu Companion Loan, as the context may require.
“Pari Passu Companion Loan Rating Agency”: Any NRSRO rating a Serviced Pari Passu Companion Loan Security.
“Pari Passu Mortgage Loan”: A Mortgage Loan included in a Loan Combination that is pari passu in right of payment to the related Pari Passu Companion Loan. The Pari Passu Mortgage Loans are the Patriots Park Mortgage Loan, the Eastgate One Phases I-VII & XII Mortgage Loan, the Stanford Research Park Mortgage Loan, the Eastgate Two Phases VIII-X
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Mortgage Loan, the 000 Xxxx 00xx Xxxxxx Mortgage Loan, the 760 & 000 Xxxxxxxxxxx Xxxxxx Mortgage Loan, the Hotel Xxxxx Mortgage Loan and the Gateway Portfolio Mortgage Loan.
“Pari Passu Primary Servicing Fee Rate”: With respect to (A) the Patriots Park Mortgage Loan or any Patriots Park Pari Passu Companion Loan, a rate equal to 0.0025% (0.25 basis points) per annum, (B) the 760 & 000 Xxxxxxxxxxx Xxxxxx Mortgage Loan or any 760 & 000 Xxxxxxxxxxx Xxxxxx Pari Passu Companion Loan, a rate equal to 0.0025% (0.25 basis points) per annum, (C) the Eastgate One Phases I-VII & XII Mortgage Loan or any Eastgate One Phases I-VII & XII Pari Passu Companion Loan, a rate equal to 0.01% (1 basis point) per annum, (D) the Stanford Research Park Mortgage Loan or any Stanford Research Park Pari Passu Companion Loan, a rate equal to 0.0025% (0.25 basis points) per annum, (E) the Eastgate Two Phases VIII-X Mortgage Loan or any Eastgate Two Phases VIII-X Pari Passu Companion Loan, a rate equal to 0.01% (1 basis point) per annum, (F) the 000 Xxxx 00xx Xxxxxx Mortgage Loan, a rate equal to 0.0025% (0.25 basis points) per annum, (G) Hotel Xxxxx Mortgage Loan or any Hotel Xxxxx Xxxx Passu Companion Loan, a rate equal to 0.0025% (0.25 basis points) per annum and (G) the Gateway Portfolio Mortgage Loan or any Gateway Portfolio Pari Passu Companion Loan, a rate equal to 0.0025% (0.25 basis points) per annum.
“Pass-Through Rate”: The per annum rate at which interest accrues in respect of any of the Classes of Regular Certificates, the Class A-S, Class B and Class C Certificates, the Class PEX Components and the Class A-S, Class B and Class C Regular Interests during any Interest Accrual Period, which rate shall be:
(a) with respect to the Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class A-5 and Class A-SB, the fixed rate per annum set forth opposite such Class in the following table:
Class | Pass-Through Rate | |
Class A-1 | 1.3420% per annum | |
Class A-2 | 2.6320% per annum | |
Class A-3 | 3.0580% per annum | |
Class A-4 | 2.8740% per annum | |
Class A-5 | 3.1480% per annum | |
Class A-SB | 2.9340% per annum |
(b) with respect to each of the Class A-S Certificates, the Class A-S-PEX Component and the Class A-S Regular Interest, an annual rate equal to 3.4060% per annum (the Class A-S Regular Interest will be uncertificated and will be transferred to the Trust Fund on the Closing Date, and the Trust will issue the Class A-S Certificates and the Class A-S-PEX Component in exchange therefor);
(c) with respect to each of the Class B Certificates, the Class B-PEX Component and the Class B Regular Interest, an annual rate equal to the lesser of (i) 3.6580% per annum and (ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest B for the subject Interest Accrual Period (the Class B Regular Interest will be uncertificated and will be transferred to the Trust Fund on the Closing Date, and
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the Trust will issue the Class B Certificates and the Class B-PEX Component in exchange therefor);
(d) with respect to each of the Class C Certificates, the Class C-PEX Component and the Class C Regular Interest, an annual rate equal to the lesser of (i) 3.8480% per annum and (ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest C for the subject Interest Accrual Period (the Class C Regular Interest will be uncertificated and will be transferred to the Trust Fund on the Closing Date, and the Trust will issue the Class C Certificates and the Class C-PEX Component in exchange therefor);
(e) with respect to the Class D Certificates, an annual rate equal to the REMIC II Remittance Rate in respect of REMIC II Regular Interest D for the subject Interest Accrual Period;
(f) with respect to the Class X-A Certificates, the weighted average of the Class X-A Strip Rates for such Interest Accrual Period;
(g) with respect to the Class X-B Certificates, the weighted average of the Class X-B Strip Rates for such Interest Accrual Period;
(h) with respect to the Class X-E Certificates, the Class X-E Strip Rate for such Interest Accrual Period;
(i) with respect to the Class X-F Certificates, the Class X-F Strip Rate for such Interest Accrual Period;
(j) with respect to the Class X-G Certificates, the Class X-G Strip Rate for such Interest Accrual Period;
(k) with respect to the Class E Certificates, an annual rate equal to the lesser of (i) 2.8810% per annum and (ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest E for the subject Interest Accrual Period;
(l) with respect to the Class F Certificates, an annual rate equal to the lesser of (i) 2.8810% per annum and (ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest F for the subject Interest Accrual Period; and
(m) with respect to the Class G Certificates, an annual rate equal to the lesser of (i) 2.8810% per annum and (ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest G for the subject Interest Accrual Period.
“Past Grace Period Loan”: With respect to any Monthly Payment or Assumed Monthly Payment due and payable, or deemed due and payable, in respect of any particular Mortgage Loan, the status attributable to that Mortgage Loan by reason of, if applicable, the fact that such Monthly Payment or Assumed Monthly Payment remains unpaid past its Due Date and past any applicable grace period for such Monthly Payment or Assumed Monthly Payment.
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“Patriots Park Loan Combination”: As defined in the Preliminary Statement.
“Patriots Park Mortgage Loan”: As defined in the Preliminary Statement.
“Patriots Park Pari Passu Companion Loan”: As defined in the Preliminary Statement.
“PCAOB”: The Public Company Accounting Oversight Board.
“Percentage Interest”: With respect to (a) any Interest Only Certificate or Principal Balance Certificate, the portion of the relevant Class evidenced by such Certificate, expressed as a percentage, the numerator of which is the Certificate Principal Balance or Certificate Notional Amount, as the case may be, of such Certificate as of the Closing Date, as specified on the face thereof, and the denominator of which is the initial Class Principal Balance or initial Class Notional Amount, as the case may be, of the relevant Class as of the Closing Date; and (b) any Class R or Class V Certificate, the percentage interest in distributions to be made with respect to the relevant Class, as specified on the face of such Certificate.
“Performance Certification”: As defined in Section 11.09.
“Performing Mortgage Loan”: Any Mortgage Loan or Serviced Pari Passu Companion Loan that is not a Specially Serviced Mortgage Loan.
“Performing Party”: As defined in Section 11.15.
“Performing Serviced Mortgage Loan”: Any Serviced Mortgage Loan that is not a Specially Serviced Mortgage Loan.
“Performing Serviced Pari Passu Companion Loan”: Any Serviced Pari Passu Companion Loan that is not a Specially Serviced Mortgage Loan.
“Permitted Investments”: Any one or more of the following obligations or securities payable on demand or having a scheduled maturity on or before the Business Day preceding the date upon which such funds are required to be drawn, regardless of whether issued by the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee or any of their respective Affiliates and having at all times the required ratings, if any, provided for in this definition, unless each Rating Agency shall have provided a Rating Agency Confirmation relating to the Certificates:
(i) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, the United States or any agency or instrumentality thereof, provided that each such obligation is backed by the full faith and credit of the United States;
(ii) repurchase agreements on obligations specified in clause (i) of this definition, with a party agreeing to repurchase such obligations (A)(1) in the case of such investments with maturities of 30 days or less, (x) the short-term obligations of the applicable repurchase agreement counterparty are rated in the
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highest short-term rating category by Fitch and (y) the short-term obligations of which counterparty are rated in the highest short-term rating category by Xxxxx’x or the long-term obligations of which counterparty are rated at least “A2” by Xxxxx’x, (2) in the case of such investments with maturities of three months or less, but more than 30 days, the short-term obligations of the applicable repurchase agreement counterparty are rated in the highest short-term rating category by each Rating Agency (other than DBRS) and the long-term obligations of which counterparty are rated at least “A1” by Xxxxx’x, (3) in the case of such investments with maturities of six months or less, but more than three months, the short-term obligations of the applicable repurchase agreement counterparty are rated in the highest short-term rating category by each Rating Agency (other than DBRS) and the long-term obligations of which counterparty are rated at least “Aa3” by Xxxxx’x, and (4) in the case of such investments with maturities of more than six months, the short-term obligations of the applicable repurchase agreement counterparty are rated in the highest short-term rating category by each Rating Agency (other than DBRS) and the long-term obligations of which counterparty are rated “Aaa” by Xxxxx’x, and (B) the short-term obligations of the applicable repurchase agreement counterparty are rated in the highest short-term debt rating category of DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Fitch and/or Xxxxx’x)) and, if it has a term in excess of three months, the long-term debt obligations of which are rated “AAA” (or the equivalent) by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Fitch and/or Xxxxx’x)) (or, in the case of any such Rating Agency as set forth in subclauses (A) – (B) above, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency);
(iii) federal funds, unsecured uncertificated certificates of deposit, time deposits, demand deposits and bankers’ acceptances of any bank or trust company organized under the laws of the United States or any state thereof, (A)(1) in the case of such investments with maturities of 30 days or less, (x) the short-term obligations of which bank or trust company are rated in the highest short-term rating category by Fitch and (y) the short-term obligations of which bank or trust company are rated in the highest short-term rating category by Xxxxx’x or the long-term obligations of which bank or trust company are rated at least “A2” by Xxxxx’x, (2) in the case of such investments with maturities of three months or less, but more than 30 days, (x) the short-term obligations of which bank or trust company are rated in the highest short-term rating category by Fitch and (y) the short-term obligations of which bank or trust company are rated in the highest short-term rating category by Xxxxx’x or the long-term obligations of which bank or trust company are rated at least “A2” by Xxxxx’x, (3) in the case of such investments with maturities of six months or less, but more than three months, the short-term obligations of which bank or trust company are rated in the highest short-term rating category by each Rating Agency (other than DBRS) and the long-term obligations of which bank or trust company are rated at least “Aa3” by Xxxxx’x and (4) in the case of such investments with maturities of more than six months, the short-term obligations of which bank or trust company are rated in the
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highest short-term rating category by each Rating Agency (other than DBRS) and the long-term obligations of which bank or trust company are rated “Aaa” by Xxxxx’x, and (B) the short-term obligations of which bank or trust company are rated in the highest short-term debt rating category of DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Fitch and/or Xxxxx’x)) and, if it has a term in excess of six months, the long-term debt obligations of which are rated “AAA” (or the equivalent) by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Fitch and/or Xxxxx’x)) (or, in the case of any such Rating Agency as set forth in subclauses (A) – (B) above, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency);
(iv) commercial paper of any corporation incorporated under the laws of the United States or any state thereof (or of any corporation not so incorporated, provided that the commercial paper is United States Dollar denominated and amounts payable thereunder are not subject to any withholding imposed by any non-United States jurisdiction) (A)(1) in the case of such investments with maturities of 30 days or less, (x) the short-term obligations of which corporation are rated in the highest short-term rating category by Fitch and (y) the short-term obligations of which corporation are rated in the highest short-term rating category by Xxxxx’x or the long-term obligations of which corporation are rated at least “A2” by Xxxxx’x, (2) in the case of such investments with maturities of three months or less, but more than 30 days, the short-term obligations of which corporation are rated in the highest short-term rating category by each Rating Agency (other than DBRS) and the long-term obligations of which corporation are rated at least “A2” by Xxxxx’x, (3) in the case of such investments with maturities of six months or less, but more than three months, the short-term obligations of which corporation are rated in the highest short-term rating category by each Rating Agency (other than DBRS) and the long-term obligations of which corporation are rated at least “Aa3” by Xxxxx’x, and (4) in the case of such investments with maturities of more than six months, the short-term obligations of which corporation are rated in the highest short-term rating category by each Rating Agency (other than DBRS) and the long-term obligations of which corporation are rated “Aaa” by Xxxxx’x (provided, however, that in the case of investments of funds in a Servicing Account pursuant to subclauses (1) – (4), with respect to the required Xxxxx’x rating, the subject corporation need only have a short-term rating of at least “P-1” from Xxxxx’x), and (B) the short-term obligations of which corporation are rated in the highest short-term debt rating category of DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Fitch and/or Xxxxx’x)) and, if it has a term in excess of six months, the long-term debt obligations of which are rated “AAA” (or the equivalent) by DBRS (or, if not rated by DBRS, an equivalent (or higher) rating by any two other NRSROs (which may include Fitch and/or Xxxxx’x)) (or, in the case of any such Rating Agency as set forth in subclauses (A) – (B) above, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency);
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(v) units of taxable money market mutual funds, issued by regulated investment companies, which seek to maintain a constant net asset value per share (including the Federated Prime Obligation Money Market Fund, US Bank Long Term Eurodollar Sweep or the Xxxxx Fargo Advantage Heritage Money Market Fund) so long as any such fund is rated in the highest category by each of DBRS, Fitch and Xxxxx’x (or, if not rated by any such Rating Agency, an equivalent rating (or higher) by at least two (2) NRSROs (which may include the Rating Agencies) or otherwise acceptable to such Rating Agency, in any such case, as confirmed in a Rating Agency Confirmation);
(vi) an obligation or security that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (ii) – (v) above, and is the subject of a Rating Agency Confirmation from each Rating Agency for which the minimum rating(s) set forth in the applicable clause is not satisfied with respect to such obligation or security; and
(vii) any other obligation or security other than one listed in clauses (i) – (v) above, that is the subject of a Rating Agency Confirmation from each and every Rating Agency;
provided that each investment described hereunder shall not (A) evidence either the right to receive (1) only interest with respect to such investment or (2) a yield to maturity greater than 120% of the yield to maturity at par of the obligations, (B) be purchased at a price greater than par if such investment may be prepaid or called at a price less than its purchase price prior to stated maturity, (C) be sold prior to stated maturity if such sale would result in a loss of principal on the instrument or a tax on “prohibited transactions” under Section 860F of the Code or (D) have an “r” highlighter or other comparable qualifier attached to its rating; and provided, further, that each investment described hereunder must have (X) a predetermined fixed amount of principal due at maturity (that cannot vary or change), (Y) an original maturity of not more than 365 days and a remaining maturity of not more than thirty (30) days and (Z) except in the case of a Permitted Investment described in clause (v) of this definition, a fixed interest rate or an interest rate that is tied to a single interest rate index plus a single fixed spread and moves proportionately with that index; and provided, further, that each investment described hereunder must be a “cash flow investment” (within the meaning of the REMIC Provisions).
“Permitted Special Servicer/Affiliate Fees”: Any commercially reasonable treasury management fees, banking fees, title insurance and/or other insurance commissions or fees and appraisal fees received or retained by the Special Servicer or any of its Affiliates in connection with any services performed by such party with respect to any Serviced Mortgage Loan, Serviced Loan Combination or REO Property in accordance with this Agreement.
“Permitted Transferee”: Any Transferee of a Class R Certificate other than (a) a Disqualified Organization, (b) a Disqualified Non-United States Tax Person, (c) a Disqualified Partnership, (d) a foreign permanent establishment or fixed base (within the meaning of any applicable income tax treaty between the United States and any foreign jurisdiction) of a United States Tax Person or (e) any other Person so designated by the Tax Administrator who is unable to provide an Opinion of Counsel at the expense of such Person or the Person seeking to Transfer
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a Class R Certificate, that the Transfer of a Class R Certificate will not cause any REMIC Pool to fail to qualify as a REMIC at any time that any Certificate is outstanding.
“Person”: Any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Phase I Environmental Assessment”: A “Phase I assessment” as described in, and meeting the criteria of, the ASTM, plus a radon and asbestos inspection.
“Plan”: Any of those employee benefit plans and other benefit plans and arrangements, including individual retirement accounts and annuities, Xxxxx plans and collective investment funds and separate accounts, the assets of which are considered “plan assets” under U.S. Department of Labor Regulation § 2510.3-101, as modified by Section 3(42) of ERISA, or for purposes of Similar Law, including insurance company general accounts, that are subject to Title I of ERISA, Section 4975 of the Code or Similar Law.
“Post-ARD Additional Interest”: With respect to any ARD Mortgage Loan after its Anticipated Repayment Date, all interest accrued on the principal balance of such ARD Mortgage Loan at the Post-ARD Additional Interest Rate (the payment of which interest shall, under the terms of such ARD Mortgage Loan, be deferred until the principal balance of such ARD Mortgage Loan and all other interest thereon has been paid in full), together with all interest, if any, accrued at the related Mortgage Rate on such deferred interest.
“Post-ARD Additional Interest Rate”: With respect to any ARD Mortgage Loan after its Anticipated Repayment Date, the incremental increase in the Mortgage Rate for such ARD Mortgage Loan resulting from the passage of such Anticipated Repayment Date.
“Prepayment Assumption”: For purposes of determining the accrual of original issue discount, market discount and premium, if any, on the Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular Interests and the Certificates for federal income tax purposes, the assumptions that no Mortgage Loan is voluntarily prepaid prior to its Stated Maturity Date.
“Prepayment Interest Excess”: With respect to any Mortgage Loan (including any Non-Trust-Serviced Pooled Mortgage Loan) that was subject to a Principal Prepayment in full or in part made (or, if resulting from the application of Insurance Proceeds or Condemnation Proceeds, any other early recovery of principal received) after the Due Date for such Mortgage Loan in any Collection Period, any payment of interest (net of related Master Servicing Fees (and, in the case of any Non-Trust-Serviced Pooled Mortgage Loan, net of interest accrued at a rate equal to the sum of (A) the applicable Pari Passu Primary Servicing Fee Rate and (B) the rate per annum at which the fee, if any, payable to the applicable Non-Trust Trust Advisor accrues) and, further, net of any portion of such interest that represents Default Charges or Post-ARD Additional Interest) actually Received by the Trust and collected from the related Borrower or out of such Insurance Proceeds or Condemnation Proceeds, as the case may be, and intended to cover the period from and after such Due Date to, but not including, the date of prepayment
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(exclusive, for the avoidance of doubt, of any related Prepayment Premium or Yield Maintenance Charge that may have been collected).
“Prepayment Interest Shortfall”: With respect to any Mortgage Loan (including any Non-Trust-Serviced Pooled Mortgage Loan) that was subject to a Principal Prepayment in full or in part made (or, if resulting from the application of Insurance Proceeds or Condemnation Proceeds, any other early recovery of principal received) prior to the Due Date for such Mortgage Loan in any Collection Period, the amount of interest, to the extent not collected from the related Borrower or otherwise (without regard to any Prepayment Premium or Yield Maintenance Charge that may have been collected), not Received by the Trust, that would have accrued on the amount of such Principal Prepayment during the period from the date to which interest was paid by the related Borrower to, but not including, the related Due Date immediately following the date of the subject Principal Prepayment (net of related Master Servicing Fees (and, in the case of (i) any Non-Trust-Serviced Pooled Mortgage Loan, if any, net of interest accrued at a rate equal to the sum of (A) the applicable Pari Passu Primary Servicing Fee Rate and (B) the rate per annum at which the fee, if any, payable to the applicable Non-Trust Trust Advisor accrues, and (ii) an ARD Mortgage Loan after its Anticipated Repayment Date, net of any Post-ARD Additional Interest), and, further, net of any portion of that interest that represents Default Charges).
“Prepayment Premium”: With respect to any Mortgage Loan, any premium, fee or other additional amount (other than a Yield Maintenance Charge) paid or payable, as the context requires, by a Borrower in connection with a Principal Prepayment on, or other early collection of principal of, such Mortgage Loan or any successor REO Mortgage Loan with respect thereto (including any payoff of a Mortgage Loan by a mezzanine lender on behalf of the subject Borrower if and as set forth in the related intercreditor agreement).
“Pricing Date”: April 20, 2015.
“Primary Collateral”: With respect to any Cross-Collateralized Mortgage Loan, that portion of the Mortgaged Property designated as directly securing such Cross-Collateralized Mortgage Loan and excluding any Mortgaged Property as to which the related lien may only be foreclosed upon by exercise of the cross-collateralization provisions of such Cross-Collateralized Mortgage Loan.
“Primary Servicer”: Berkadia Commercial Mortgage LLC, or any successor thereto (as primary servicer) appointed as provided in the related Primary Servicing Agreement.
“Primary Servicing Agreement”: As the context may require, that certain Primary Servicing Agreement, dated as of April 1, 2015, between Xxxxx Fargo Bank, National Association, as master servicer, and Berkadia Commercial Mortgage LLC, as primary servicer, relating to some or all of the Mortgage Loans for which WFB is the applicable Mortgage Loan Seller.
“Primary Servicing Office”: The office of the Master Servicer or the Special Servicer, as the context may require, that is primarily responsible for such party’s servicing obligations hereunder.
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“Principal Balance Certificate”: Any of the Class A-1, Class A-2, Class A-3, Class X-0, Xxxxx X-0, Class A-SB, Class A-S, Class B, Class C, Class D, Class E, Class F, Class G and Class PEX Certificates.
“Principal Distribution Amount”: With respect to any Distribution Date (other than the Final Distribution Date) and the Principal Balance Certificates (other than the Class A-S, Class B, Class C and Class PEX Certificates) and the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest, an amount (which shall in no event be less than zero) equal to the excess, if any, of:
(I) the sum of:
(A) the aggregate (without duplication) of the following (such aggregate of the following amounts described below in this clause (A), the “Unadjusted Principal Distribution Amount” for such Distribution Date):
(i) all payments of principal (including Principal Prepayments), including any such payments on Corrected Mortgage Loans (but exclusive, if applicable, in the case of a Serviced Loan Combination, of any payments of principal payable to the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), Received by the Trust with respect to the Mortgage Loans during the related Collection Period, in each case exclusive of any portion of the particular payment that represents a Late Collection of principal for which a P&I Advance (including any Unliquidated Advance in respect of a prior P&I Advance) was previously made under this Agreement for a prior Distribution Date or that represents the principal portion of a Monthly Payment due on or before the Cut-off Date or on a Due Date occurring subsequent to the calendar month in which such Distribution Date occurs,
(ii) the aggregate of the principal portions of all Monthly Payments due in respect of the Mortgage Loans for their respective Due Dates occurring in the month in which such Distribution Date occurs, that were Received by the Trust (other than as part of a Principal Prepayment) prior to the related Collection Period,
(iii) the aggregate of all Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds Received by the Trust with respect to any Mortgage Loans during the related Collection Period that were identified and applied by the Master Servicer as recoveries of principal (whether as Principal Prepayments or otherwise) of such Mortgage Loans in accordance with Section 1.03, in each case net of any portion of such proceeds that represents a Late Collection of principal (a) due on or before the Cut-off Date or (b) for which a P&I Advance (including an Unliquidated Advance in respect of a prior P&I Advance) was previously made under this Agreement for a prior Distribution Date,
(iv) the aggregate of all Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and REO Revenues Received by the Trust with respect to any
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REO Properties during the related Collection Period that were identified and applied by the Master Servicer as recoveries of principal (whether as Principal Prepayments or otherwise) of the related REO Mortgage Loans in accordance with Section 1.03, in each case net of any portion of such proceeds and/or revenues that represents a Late Collection of principal (a) due on or before the Cut-off Date or (b) for which a P&I Advance (including an Unliquidated Advance in respect of a prior P&I Advance) was previously made under this Agreement for a prior Distribution Date, and
(v) the respective principal portions of all P&I Advances made under this Agreement in respect of the Mortgage Loans and any REO Mortgage Loans with respect to such Distribution Date;
(B) the aggregate amount of any collections received on or in respect of the Mortgage Loans during the related Collection Period that, in each case, represents a delinquent amount as to which an Advance had been made, which Advance was previously reimbursed during the Collection Period for a prior Distribution Date as part of a Workout-Delayed Reimbursement Amount for which a deduction was made under clause (II)(B) below with respect to such Distribution Date; and
(C) the aggregate amount of any collections received on or in respect of the Mortgage Loans during the related Collection Period that, in each case, is identified and applied by the Master Servicer (in accordance with Section 1.03) as a recovery of an amount previously determined (in a Collection Period for a prior Distribution Date) to have been a Nonrecoverable Advance and for which a deduction was made under clause (II)(C) below with respect to a prior Distribution Date; less
(II) the sum of:
(A) the aggregate amount of Workout-Delayed Reimbursement Amounts (and Advance Interest thereon) that were reimbursed or paid during the related Collection Period to one or more of the Master Servicer, the Special Servicer and the Trustee from principal advances and collections on the Mortgage Pool pursuant to Section 3.05(a)(II)(iii);
(B) with respect to each Mortgage Loan (1) with respect to which Insurance Proceeds, Condemnation Proceeds and/or Liquidation Proceeds were received during the related Collection Period or (2) that was otherwise liquidated, including at a discount, during such Collection Period, the aggregate amount of Liquidation Fees and Workout Fees paid with respect to such Mortgage Loan from a source other than Default Charges during such Collection Period, provided that, in the case of any individual Mortgage Loan, the deduction in respect of such Liquidation Fees and Workout Fees under this clause (II)(B) shall not exceed the amounts described in clauses (I)(A)(i) through (I)(A)(v) that are attributable to such Mortgage Loan; and
(C) the aggregate amount of Nonrecoverable Advances (and Advance Interest thereon) that were reimbursed or paid during the related Collection Period to one or more
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of the Master Servicer, the Special Servicer and the Trustee during the related Collection Period from principal advances and collections on the Mortgage Pool pursuant to Section 3.05(a)(II)(iv).
Furthermore, unless and until the Class Principal Balances of all Classes of Principal Balance Certificates other than the Control-Eligible Certificates have been reduced to zero, the Principal Distribution Amount (or any lesser portion thereof allocable to the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-SB, Class D or Class E Certificates and the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest) for each Distribution Date will be reduced to the extent of any Trust Advisor Expenses (other than Designated Trust Advisor Expenses) that exceed the amount of interest otherwise payable on the Class B Regular Interest, the Class C Regular Interest and the Class D and Class E Certificates on that Distribution Date.
With respect to the Final Distribution Date, the “Principal Distribution Amount” shall equal the aggregate Stated Principal Balance of the entire Mortgage Pool outstanding immediately prior to the Final Distribution Date.
In no event shall any portion of any Excess Liquidation Proceeds constitute a portion of the Principal Distribution Amount for any Distribution Date.
“Principal Prepayment”: Any payment of principal made by the Borrower on a Mortgage Loan, which is received in advance of its scheduled Due Date and that is not accompanied by an amount of interest (without regard to any Prepayment Premium, Yield Maintenance Charge and/or Post-ARD Additional Interest that may have been collected) representing scheduled interest due on any date or dates in any month or months subsequent to the month of prepayment.
“Private Placement Memorandum”: The final Private Placement Memorandum dated April 21, 2015, relating to certain classes of the Non-Registered Certificates delivered by the Depositor to WFS, Barclays and Natixis Securities as of the Closing Date.
“Privileged Communications”: Any correspondence between the Subordinate Class Representative and the Special Servicer referred to in clause (i) of the definition of “Privileged Information”.
“Privileged Information”: Any (i) correspondence between the Subordinate Class Representative and the Special Servicer related to any Specially Serviced Mortgage Loan or the exercise of the Subordinate Class Representative’s consent or consultation rights under this Agreement, and (ii) information that the Special Servicer has reasonably determined could compromise the Trust Fund’s position in any ongoing or future negotiations with a related Borrower under a Specially Serviced Mortgage Loan or any other interested party or in litigation or in potential legal proceedings.
“Privileged Person”: Any of (i) the Depositor or its designee, (ii) each Underwriter, (iii) the Trustee, (iv) the Certificate Administrator, (v) the Master Servicer, (vi) the Special Servicer, (vii) the Subordinate Class Representative, (viii) the Trust Advisor, (ix) any Mortgage Loan Seller, (x) the Non-Trust Master Servicer, (xi) any Person who certifies to the
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Certificate Administrator substantially in the form of Exhibit K-1 hereto or Exhibit K-2 hereto, as applicable (which form shall also be located on, and may be submitted electronically via, the Certificate Administrator’s Website), that such Person is a Certificateholder, a Certificate Owner or a prospective purchaser of a Certificate or any interest therein, and agrees to be bound by the confidentiality provisions contained therein, (xii) any Serviced Pari Passu Companion Loan Holder that delivers a certification to the Certificate Administrator in the form of Exhibit H hereto, (xiii) after an Other Securitization, the Other Master Servicer and (xiv) each Rating Agency and each NRSRO that has submitted an NRSRO Certification to the Certificate Administrator (which NRSRO Certification may be submitted electronically via the Certificate Administrator’s Website). For purposes of obtaining information or access to the Certificate Administrator’s Website, Privileged Persons who are Borrower Parties shall be prohibited from obtaining such information or access pursuant to the terms of this Agreement, other than with respect to Distribution Date Statements as provided in Section 4.02(a). The Certificate Administrator may require that investor certifications in the form of Exhibit K-1 or Exhibit K-2 be re-submitted from time to time in accordance with its policies and procedures and shall restrict access to the Certificate Administrator’s Website to a mezzanine lender upon notice from the Special Servicer pursuant to this Agreement in the form of Exhibit K-4 hereto (or such other form as mutually agreed to by the Certificate Administrator and the Special Servicer) stating that such mezzanine lender has commenced foreclosure proceedings against the equity collateral pledged to secure the related mezzanine loan.
“Prohibited Party”: As of any date of determination, any Person that has theretofore failed to comply with such Person’s obligations under Regulation AB with respect to the Trust Fund or any other securitization if (and only if) both (A) such failure was an “event of default” under the relevant agreement to which such Person was a party, and (B) such Person is proposed to become a Servicing Function Participant in respect of the Trust Fund. In determining whether any person or entity is a “Prohibited Party”, each party hereto, provided that they are not an Affiliate of such Person, shall be entitled to conclusively rely on a written certification from any Person stating that it is not a Prohibited Party. All necessary determinations under or for purposes of this definition shall be made as of the date of consummation of the transaction in which the relevant person or entity would become a Servicing Function Participant in respect of the Trust Fund.
“Prospectus”: The Base Prospectus and the Prospectus Supplement, together.
“Prospectus Supplement”: That certain prospectus supplement dated April 21, 2015, relating to the Registered Certificates, that is a supplement to the Base Prospectus.
“PTCE”: Prohibited Transaction Class Exemption.
“PTE”: Prohibited Transaction Exemption.
“Purchase Price”: With respect to any Mortgage Loan (or REO Property), a cash price equal to the aggregate of (a) the outstanding principal balance of such Mortgage Loan (or the related REO Mortgage Loan) as of the date of purchase less any portion of any Loss of Value Payment then on deposit in the Loss of Value Reserve Fund attributable to such Mortgage Loan (or REO Property), (b) all accrued and unpaid interest on such Mortgage Loan (or the related
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REO Mortgage Loan) at the related Mortgage Rate to, but not including, the Due Date occurring in the Collection Period during which the applicable purchase or repurchase occurs (exclusive, however, of any portion of such accrued but unpaid interest that represents Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, Post-ARD Additional Interest), (c) all related unreimbursed Servicing Advances (including, in the case of any Non-Trust-Serviced Pooled Mortgage Loan, the pro rata portion of any such amounts allocable to such Mortgage Loan and payable with respect thereto pursuant to the related Intercreditor Agreement) (together with Unliquidated Advances in respect of prior Servicing Advances) and all related Servicing Advances (without duplication with Unliquidated Advances described in the immediately preceding parenthetical clause) that were previously reimbursed out of collections on other Mortgage Loans and/or REO Properties relating to other Mortgage Loans, if any, (d) all accrued and unpaid Advance Interest with respect to any related Advances (including, in the case of (i) any Non-Trust-Serviced Pooled Mortgage Loan, the pro rata portion of any such amounts allocable to such Mortgage Loan and payable with respect thereto pursuant to the related Intercreditor Agreement and (ii) any Serviced Loan Combination, if a securitization trust holds a related Serviced Pari Passu Companion Loan, interest on any comparable debt service advances made by a servicer or trustee of such securitization trust), and (e) solely in the case of a purchase, repurchase or substitution, as applicable, by a Responsible Repurchase Party pursuant to the related Mortgage Loan Purchase Agreement, (i) to the extent not otherwise included in the amount described in clause (d) of this definition, any unpaid Special Servicing Fees and other outstanding Additional Trust Fund Expenses (including without limitation any Liquidation Fee payable in connection with the applicable purchase or repurchase) with respect to such Mortgage Loan (or REO Property) and (ii) to the extent not otherwise included in the amount described in clause (c) or clause (e) of this definition, any costs and expenses incurred by the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee or an agent of any of them (on behalf of the Trust) in enforcing the obligation, if any, of a Responsible Repurchase Party to repurchase or replace such Mortgage Loan or REO Property.
For purposes of this Agreement, (i) the “Purchase Price” in respect of a Serviced Pari Passu Companion Loan that is purchased by the related mortgage loan seller shall be the repurchase price paid by the related mortgage loan seller under the related Other Pooling and Servicing Agreement or the applicable servicing agreement and (ii) with respect to a sale of an REO Property securing a Serviced Loan Combination, the term “Mortgage Loan” or “REO Mortgage Loan” shall be construed to include the related Serviced Pari Passu Companion Loan(s).
“Qualified Appraiser”: In connection with the appraisal of any Mortgaged Property or REO Property, an Independent MAI-designated appraiser with at least five years of experience in respect of the relevant geographic location and property type.
“Qualified Bidder”: As defined in Section 7.01(c).
“Qualified Institutional Buyer” or “QIB”: A “qualified institutional buyer” within the meaning of Rule 144A.
“Qualified Insurer”: An insurance company or security or bonding company qualified to write the related Insurance Policy in the relevant jurisdiction.
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“Qualified Mortgage”: A qualified mortgage within the meaning of Section 860G(a)(3) of the Code.
“Qualified Replacement Special Servicer”: A Person as to which all the following conditions are satisfied at the relevant date of determination: (A)(i) all the representations and warranties set forth in Section 2.06 are true and accurate as applied to such Person (other than any change in the entity type or the state or jurisdiction of formation), (ii) there is no event or circumstances that constitutes, or would constitute, but for notice or the passage of time, a Servicer Termination Event with respect to such Person under this Agreement, (iii) such Person is not the Trust Advisor or an Affiliate of the Trust Advisor and there exists no agreement as a result of which, whether or not subject to any condition or contingency, such Person would become an Affiliate of the Trust Advisor or merge or be consolidated with or into the Trust Advisor (regardless of the identity of the surviving Person) or succeed to any portion of the business of the Trust Advisor that includes the Trust Advisor’s rights or duties under this Agreement, (iv) neither such Person nor any Affiliate of such Person is obligated, whether by agreement or otherwise, and whether or not subject to any condition or contingency, to pay any fee to, or otherwise compensate or grant monetary or other consideration to, the Trust Advisor or any Affiliate thereof in connection with this Agreement, (x) in connection with the special servicing obligations that such Person would assume under this Agreement or the performance thereof or (y) in connection with the appointment of such Person as, or any recommendation by the Trust Advisor for such Person to become, the successor Special Servicer, (v) such Person is not entitled to receive any compensation from the Trust Advisor in connection with its activities under this Agreement and (vi) such Person is not entitled to receive from the Trust Advisor or any Affiliate thereof any fee in connection with the appointment of such Person as successor Special Servicer, unless, in the case of each of the foregoing clauses (i) through (vi), the appointment of such Person as successor Special Servicer has been expressly approved by 100% of the Certificateholders; and (B) such Person is not a Prohibited Party and has not been terminated in the capacity of Master Servicer or Special Servicer hereunder in whole or in part as a result of a Servicer Termination Event under Section 7.01(a)(xii), unless the appointment of such Person as successor Special Servicer has been expressly approved by Depositor acting in its reasonable discretion.
“Qualifying Substitute Mortgage Loan”: In connection with the replacement of a Defective Mortgage Loan as contemplated by Section 2.03, any other mortgage loan which, on the date of substitution: (i) has an outstanding Stated Principal Balance, after application of all scheduled payments of principal and interest due during or prior to the month of substitution, not in excess of the Stated Principal Balance of the Defective Mortgage Loan as of the Due Date in the calendar month during which the substitution occurs; (ii) has a fixed Mortgage Rate that is not less than, and not more than one percentage point in excess of, the Mortgage Rate of the Defective Mortgage Loan; (iii) has the same monthly Due Date as, and a grace period for delinquent Monthly Payments that is no longer than, the Due Date and grace period, respectively, of the Defective Mortgage Loan; (iv) accrues interest on the same Interest Accrual Basis as the Defective Mortgage Loan; (v) has a remaining term to stated maturity not greater than, and not more than one year less than, that of the Defective Mortgage Loan, (vi) has a Stated Maturity Date not later than two years prior to the Rated Final Distribution Date; (vii) has a then-current loan-to-value ratio not higher than, and a then-current debt service coverage ratio not lower than, the loan-to-value ratio and debt service coverage ratio, respectively, of the Defective
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Mortgage Loan as of the Closing Date; (viii) has comparable prepayment restrictions to those of the Defective Mortgage Loan; (ix) will comply, as of the date of substitution, with all of the representations relating to the Defective Mortgage Loan set forth in or made pursuant to the related Mortgage Loan Purchase Agreement; (x) has a Phase I Environmental Assessment relating to the related Mortgaged Property in its Servicing File, which Phase I Environmental Assessment will evidence that there is no material adverse environmental condition or circumstance at the related Mortgaged Property for which further remedial action may be required under applicable law; and (xi) constitutes a “qualified replacement mortgage” within the meaning of Section 860G(a)(4) of the Code (as evidenced by an Opinion of Counsel provided by the related Responsible Repurchase Party at its expense); provided that if more than one mortgage loan is to be substituted for any Defective Mortgage Loan, then all such proposed Replacement Mortgage Loans shall, in the aggregate, satisfy the requirement specified in clause (i) of this definition and have a weighted average remaining term to stated maturity that satisfies the condition described in clause (v) above and each such proposed Replacement Mortgage Loan shall, individually, satisfy each of the requirements specified in clauses (ii) through (iv) and clauses (vi) through (xi) of this definition; and provided, further, that no mortgage loan shall be substituted for a Defective Mortgage Loan unless (a) such prospective Replacement Mortgage Loan shall (at all times other than during a Senior Consultation Period) be acceptable to the Subordinate Class Representative (or, if there is no Subordinate Class Representative then serving, to the Majority Subordinate Certificateholder), in its sole discretion, (b) such substitution is the subject of a Rating Agency Confirmation and (c) the related Responsible Repurchase Party (at its expense) has delivered or caused to have been delivered to the Trustee an Opinion of Counsel to the effect that the substitution of such mortgage loan would not result in an Adverse REMIC Event with respect to any REMIC Pool, either immediately or at some future date due to the right of the mortgagor to obtain a release of all or any portion of the real property securing such Replacement Mortgage Loan in a manner that could result in such Replacement Mortgage Loan ceasing to be a Qualified Mortgage on or after the date of such release. When a Replacement Mortgage Loan is substituted for a Defective Mortgage Loan, the applicable Responsible Repurchase Party shall certify that the Mortgage Loan meets all of the requirements of the above definition and shall send such certification to the Trustee.
“Rated Certificate”: Any of the Certificates to which a rating has been assigned by a Rating Agency at the request of the Depositor.
“Rated Final Distribution Date”: With respect to each Class of Rated Certificates, the Distribution Date in May 2048.
“Rating Agency”: With respect to any Class of Rated Certificates, each of DBRS, Fitch and Xxxxx’x or their successors in interest.
“Rating Agency Confirmation”: With respect to any matter, written confirmation (which may be in electronic form) from each applicable Rating Agency that a proposed action, failure to act or other event will not in and of itself result in the downgrade, withdrawal or qualification of the then-current rating assigned to any Class of Certificates (if then rated by such Rating Agency); provided that if a written waiver or acknowledgment indicating its decision not to review the matter for which the Rating Agency Confirmation is sought, then the requirement to receive a Rating Agency Confirmation from the Rating Agency with respect to such matter
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shall not apply. For the purposes of this definition, any confirmation, waiver, request, acknowledgment or approval which is required to be in writing may be in the form of electronic mail. Notwithstanding anything to the contrary set forth in this Agreement, at any time during which the Certificates are no longer rated by a Rating Agency, no Rating Agency Confirmation will be required under this Agreement.
“Rating Agency Inquiries”: As defined in Section 8.12(g).
“Rating Agency Q&A Forum and Servicer Document Request Tool”: As defined in Section 8.12(g).
“Realized Loss”: With respect to:
(1) each Mortgage Loan or Serviced Loan Combination, as applicable, as to which a Final Recovery Determination has been made (or any related successor REO Mortgage Loan as to which a Final Recovery Determination has been made as to the related REO Property), and with respect to each Mortgage Loan or Serviced Loan Combination, as applicable, that is a Corrected Mortgage Loan on which all amounts have been fully paid under the terms of such Corrected Mortgage Loan (as it may have been modified), an amount (not less than zero) equal to the excess, if any, of (a) the sum of (i) the unpaid principal balance of such Mortgage Loan or Serviced Loan Combination, as applicable, or REO Mortgage Loan, as the case may be, as of the commencement of the Collection Period in which the Final Recovery Determination was made or the final payment was made, as the case may be, plus (ii) without taking into account the amount described in subclause (1)(b) of this definition, all accrued but unpaid interest (exclusive, however, of any portion of such accrued but unpaid interest that represents Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, Post-ARD Additional Interest) on such Mortgage Loan or Serviced Loan Combination, as applicable, or such REO Mortgage Loan, as the case may be, to but not including the Due Date in the Collection Period in which the Final Recovery Determination was made or such final payment was made, as the case may be, plus (iii) without duplication with amounts included under another subclause above, all related unreimbursed Servicing Advances (together with Unliquidated Advances in respect of prior Servicing Advances) and unpaid Liquidation Expenses, plus (iv) the amount of any and all related Special Servicing Fees, Liquidation Fees and/or Workout Fees with respect to such Mortgage Loan or Serviced Loan Combination, as applicable, or successor REO Mortgage Loan, to the extent not previously reflected as Realized Loss with respect to such Mortgage Loan or Serviced Loan Combination, as applicable, or successor REO Mortgage Loan, plus (v) any accrued and unpaid Advance Interest on any Advances, over (b) all payments and proceeds, if any, Received by the Trust in respect of such Mortgage Loan or Serviced Loan Combination, as applicable, or, to the extent allocable to such REO Mortgage Loan, the related REO Property, as the case may be, during the Collection Period in which such Final Recovery Determination was made or such final payment was made, as the case may be;
(2) each Mortgage Loan or Serviced Loan Combination, as applicable, as to which any portion of the principal or previously accrued interest payable thereunder
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or any Unliquidated Advance was canceled in connection with a bankruptcy or similar proceeding involving the related Borrower or a modification, extension, waiver or amendment of such Mortgage Loan or Serviced Loan Combination, as applicable, granted or agreed to by the Master Servicer or the Special Servicer pursuant to Section 3.20 (or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, by the related Non-Trust Master Servicer or the related Non-Trust Special Servicer pursuant to the related Non-Trust Pooling and Servicing Agreement), the amount of such principal and/or interest (other than Default Interest and, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, Post-ARD Additional Interest) or Unliquidated Advance so canceled; and
(3) each Mortgage Loan or Serviced Loan Combination, as applicable, as to which the Mortgage Rate thereon has been permanently reduced and not recaptured for any period in connection with a bankruptcy or similar proceeding involving the related Borrower or a modification, extension, waiver or amendment of such Mortgage Loan granted or agreed to by the Master Servicer or the Special Servicer pursuant to Section 3.20 (or, in the case of a Non-Trust-Serviced Pooled Mortgage Loan, by the related Non-Trust Master Servicer or the related Non-Trust Special Servicer pursuant to the related Non-Trust Pooling and Servicing Agreement), the amount of the consequent reduction in the interest portion of each successive Monthly Payment due thereon (on the related Due Date for the affected Monthly Payment).
Notwithstanding the foregoing, any allocation of any Realized Loss to any REMIC I Regular Interest, any REMIC II Regular Interest, any Class of Principal Balance Certificates (other than the Class A-S, Class B, Class C and Class PEX Certificates) or the Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest, as the case may be, may occur (i) in the case of any amount described in clause (1) or clause (2) above, solely pursuant to, in accordance with and to the extent provided by the combination of (x) the accounting for such amount that occurs under the definition of “Stated Principal Balance” and (y) the operation of Section 4.04 of this Agreement and (ii) in the case of any amount described in clause (3) above, solely pursuant to, in accordance with and to the extent provided by the operation of Section 4.04 of this Agreement.
“Realized Loss Template”: With respect to each Collection Period, 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. The Realized Loss Template shall be in Excel format or such other format as is reasonably acceptable to the Master Servicer, the Trustee, the Certificate Administrator and the Subordinate Class Representative.
“Received by the Trust”: In the case of (a) a Non-Trust-Serviced Pooled Mortgage Loan or any REO Property related thereto, received by the Trustee (or the Master Servicer on behalf of the Trustee), as holder of the Mortgage Note for such Non-Trust-Serviced Pooled Mortgage Loan, on behalf of the Trust; and (b) any Serviced Mortgage Loan, Serviced Loan Combination or related Administered REO Property, received by the Master Servicer (or any Sub-Servicer thereof), the Special Servicer (or any Sub-Servicer thereof) or the Trustee, as
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the case may be, on behalf of the Trust and/or, in connection with a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s).
“Record Date”: With respect to any Distribution Date and each Class of Certificates, the last Business Day of the month immediately preceding the month in which such Distribution Date occurs.
“Recovered Interest Amounts”: As defined in the definition of “Interest Distribution Amount”.
“Registered Certificate”: Any Certificate that has been the subject of registration under the Securities Act. As of the Closing Date, the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-SB, Class X-A, Class X-B, Class A-S, Class B, Class C and Class PEX Certificates constitute Registered Certificates.
“Regular Certificate”: Any of the Interest Only Certificates and the Principal Balance Certificates (other than the Class A-S, Class B, Class C and Class PEX Certificates). The Regular Certificates have the terms provided for in Section 2.15.
“Regulation AB”: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such rules may be amended from time to time, and subject to such clarification and interpretation as have been or may hereafter be from time to time provided by the Commission or by the staff of the Commission, in each case as effective from time to time as of the compliance dates specified therein.
“Regulation S”: Regulation S under the Securities Act.
“Regulation S Global Certificate”: With respect to any Class of Book-Entry Non-Registered Certificates offered and sold to institutions that are non-United States Securities Persons in Offshore Transactions in reliance on Regulation S, a single global Certificate, or multiple global Certificates collectively, in definitive, fully registered form without interest coupon, each of which Certificates bears a Regulation S Legend.
“Regulation S Legend”: With respect to any Class of Book-Entry Non-Registered Certificates offered and sold to institutions that are non-United States Securities Persons in Offshore Transactions in reliance on Regulation S, a legend generally to the effect that such Certificates may not be offered, sold, pledged or otherwise transferred in a non-Offshore Transaction or to a United States Securities Person prior to the Release Date except pursuant to an exemption from the registration requirements of the Securities Act.
“Reimbursement Rate”: The rate per annum applicable to the accrual of Advance Interest, which rate per annum is equal to the “prime rate” published in the “Money Rates” section of The Wall Street Journal, as such “prime rate” may change from time to time. If The Wall Street Journal ceases to publish the “prime rate”, then the Certificate Administrator, in its sole discretion, 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 Certificate Administrator shall select a comparable interest rate index. In either case, such selection shall be made by the Certificate
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Administrator in its sole discretion and the Certificate Administrator shall notify the Master Servicer and the Special Servicer in writing of its selection.
“Release Date”: The date that is forty (40) days following the later of (i) the Closing Date and (ii) the commencement of the initial offering of the Non-Registered Certificates in reliance on Regulation S.
“Relevant Servicing Criteria”: The Servicing Criteria applicable to each Reporting Servicer (as set forth on Schedule III attached hereto). For clarification purposes, multiple Reporting Servicers can have responsibility for the same Relevant Servicing Criteria and some of the Servicing Criteria will not be applicable to certain Reporting Servicers. With respect to a Servicing Function Participant engaged by the Trustee, the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator or any Sub-Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the Relevant Servicing Criteria applicable to the Trustee, the Master Servicer, the Special Servicer, the Trust Advisor, the Certificate Administrator or such Sub-Servicer.
“REMIC”: A “real estate mortgage investment conduit” as defined in Section 860A through G of the Code.
“REMIC I”: The segregated pool of assets designated as such in Section 2.11(a).
“REMIC I Regular Interest”: Any of the separate non-certificated beneficial ownership interests in REMIC I issued hereunder and, in each such case, designated as a “regular interest” (within the meaning of Section 860G(a)(1) of the Code) in REMIC I. The REMIC I Regular Interests have the designations and terms provided for in Section 2.11.
“REMIC I Remittance Rate”: The per annum rate at which interest accrues in respect of any REMIC I Regular Interest during any Interest Accrual Period, as set forth in or otherwise calculated in accordance with Section 2.11(f).
“REMIC I Residual Interest”: The sole uncertificated “residual interest” (within the meaning of Section 860G(a)(2) of the Code) in REMIC I issued pursuant to this Agreement.
“REMIC II”: The segregated pool of assets designated as such in Section 2.13(a).
“REMIC II Regular Interest”: Any of the separate non-certificated beneficial ownership interests in REMIC II issued hereunder and, in each such case, designated as a “regular interest” (within the meaning of Section 860G(a)(1) of the Code) in REMIC II. The REMIC II Regular Interests have the designations provided for in the Preliminary Statement hereto. The REMIC II Regular Interests have the terms provided for in Section 2.13.
“REMIC II Remittance Rate”: The per annum rate at which interest accrues in respect of any REMIC II Regular Interest during any Interest Accrual Period, as set forth in or otherwise calculated in accordance with Section 2.13(f).
“REMIC II Residual Interest”: The sole uncertificated “residual interest” (within the meaning of Section 860G(a)(2) of the Code) in REMIC II issued pursuant to this Agreement.
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“REMIC III”: The segregated pool of assets designated as such in Section 2.15(a).
“REMIC III Component”: Any of the separate beneficial ownership interests in REMIC III issued hereunder, evidenced by a Class of Interest Only Certificates. The REMIC III Components have the designations provided for in the Preliminary Statement hereto and each constitutes a “regular interest” in REMIC III (within the meaning of Section 860G(a)(1) of the Code). The REMIC III Components have the terms provided for in Section 2.15.
“REMIC III Regular Interest”: The Class A-S Regular Interest, Class B Regular Interest or Class C Regular Interest, as applicable.
“REMIC III Residual Interest”: The sole uncertificated “residual interest” (within the meaning of Section 860G(a)(2) of the Code) in REMIC III issued pursuant to this Agreement.
“REMIC Pool”: Any of REMIC I, REMIC II or REMIC III.
“REMIC Provisions”: The provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related provisions, and proposed, temporary and final Treasury regulations and any published rulings, notices and announcements promulgated thereunder, as the foregoing may be in effect from time to time.
“REMIC Sub-Account”: As defined in Section 3.04(b).
“Rents from Real Property”: With respect to any REO Property, gross income of the character described in Section 856(d) of the Code.
“REO Account”: A segregated custodial account or accounts created and maintained by the Special Servicer, pursuant to and for the benefit of the Persons specified in Section 3.16(b), which shall be titled “Rialto Capital Advisors, LLC [or the name of any successor Special Servicer], as Special Servicer, on behalf of Wilmington Trust, National Association [or the name of any successor Trustee], as Trustee, for the benefit of the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1, and if the account is established for the deposit of funds received in respect of one or more REO Properties related to any Serviced Loan Combination, “Rialto Capital Advisors, LLC [or the name of any successor Special Servicer], as Special Servicer, on behalf of Wilmington Trust, National Association [or the name of any successor Trustee], as Trustee, for the benefit of the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1 and the owners of any Serviced Pari Passu Companion Loan, as their interests may appear, REO Account”.
“REO Acquisition”: The acquisition of any REO Property pursuant to Section 3.09 (or, in the case of any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the related Non-Trust Pooling and Servicing Agreement).
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“REO Disposition”: The sale or other disposition of any REO Property pursuant to Section 3.18 (or, in the case of any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the related Non-Trust Pooling and Servicing Agreement).
“REO Extension”: As defined in Section 3.16(a).
“REO Mortgage Loan”: The successor mortgage loan to a Mortgage Loan or Serviced Loan Combination (including those deemed to be outstanding with respect to a Non-Trust-Serviced Pooled Mortgage Loan or a Serviced Pari Passu Companion Loan), which successor mortgage loan is deemed for purposes hereof to be outstanding with respect to each REO Property. Each REO Mortgage Loan shall be deemed to provide for monthly payments of principal and/or interest equal to its Assumed Monthly Payment and otherwise to have the same terms and conditions as its predecessor mortgage loan (such terms and conditions to be applied without regard to the default on such predecessor mortgage loan and the acquisition of the related REO Property on behalf of the Trust or, if applicable, in the case of any REO Property related to any Serviced Loan Combination, on behalf of the Trust and the respective holders of the related Serviced Pari Passu Companion Loan(s)). Each REO Mortgage Loan shall be deemed to have an initial unpaid principal balance and Stated Principal Balance equal to the unpaid principal balance and Stated Principal Balance, respectively, of its predecessor mortgage loan as of the date of the related REO Acquisition. All Monthly Payments (other than a Balloon Payment), Assumed Monthly Payments (in the case of a Balloon Mortgage Loan delinquent in respect of its Balloon Payment) and other amounts due and owing, or deemed to be due and owing, in respect of the predecessor mortgage loan as of the date of the related REO Acquisition, shall be deemed to continue to be due and owing in respect of an REO Mortgage Loan. In addition, all amounts payable or reimbursable to the Master Servicer, the Special Servicer, the Trust Advisor or the Trustee in respect of the predecessor mortgage loan as of the date of the related REO Acquisition, including any unpaid or unreimbursed Master Servicing Fees, Special Servicing Fees and Advances (together with Unliquidated Advances in respect of prior Advances), together with any related unpaid Advance Interest on such Advances (other than Unliquidated Advances), Trust Advisor Ongoing Fees and Trust Advisor Expenses, shall continue to be payable or reimbursable in the same priority and manner pursuant to Section 3.05(a) to the Master Servicer, the Special Servicer, the Trustee, the Trust Advisor or the Trust, as the case may be, in respect of an REO Mortgage Loan.
“REO Property”: A Mortgaged Property acquired on behalf and in the name of the Trustee for the benefit of the Certificateholders (and, in the case of each such Mortgaged Property relating to a Serviced Loan Combination, also on behalf of the related Serviced Pari Passu Companion Loan Holder(s)) through foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in accordance with applicable law in connection with the default or imminent default of a Mortgage Loan or Serviced Pari Passu Companion Loan; provided that a Mortgaged Property that secures a Non-Trust-Serviced Pooled Mortgage Loan shall constitute an REO Property if and when it is acquired under the related Non-Trust Pooling and Servicing Agreement for the benefit of the Trustee as the holder of such Non-Trust-Serviced Pooled Mortgage Loan and of the holder of the related Non-Serviced Pari Passu Companion Loan(s) through foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in accordance with applicable law in connection with a default or imminent default of such Non-Trust-Serviced Pooled Mortgage Loan.
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“REO Revenues”: All income, rents, profits and proceeds derived from the ownership, operation or leasing of any REO Property, other than any income, profits or proceeds derived from the REO Disposition of such REO Property.
“REO Tax”: As defined in Section 3.17(a).
“Replacement Mortgage Loan”: Any Qualifying Substitute Mortgage Loan that is substituted by a Responsible Repurchase Party for a Defective Mortgage Loan as contemplated by Section 2.03.
“Reportable Event”: As defined in Section 11.10.
“Reporting Requirements”: As defined in Section 11.15.
“Reporting Servicer”: As defined in Section 11.13.
“Repurchase”: As defined in Section 2.03(g).
“Repurchase Communication”: For purposes of Section 2.03(g) and Section 3.22(a) of this Agreement only, any communication, whether oral or written, which need not be in any specific form.
“Repurchase Request”: As defined in Section 2.03(g).
“Repurchase Request Recipient”: As defined in Section 2.03(g).
“Repurchase Request Rejection”: As defined in Section 2.03(g).
“Repurchase Request Withdrawal”: As defined in Section 2.03(g).
“Request for Release”: A request signed by a Servicing Officer of, as applicable, the Master Servicer in the form of Exhibit F-1 attached hereto or the Special Servicer in the form of Exhibit F-2 attached hereto.
“Requesting Party”: As defined in Section 3.27(a).
“Required Appraisal Loan”: As defined in Section 3.19(a).
“Required Claims-Paying Ratings”: As used in Section 3.07 of this Agreement,
(i) in the case of coverage provided for a Mortgaged Property related to any Mortgage Loan or Serviced Loan Combination, a claims-paying ability rating of at least (1) “A (low)” by DBRS (or, if not rated by DBRS, an equivalent rating by (A) at least two NRSROs (which may include Fitch and/or Xxxxx’x) or (B) one NRSRO (which may include Fitch or Xxxxx’x) and A.M. Best Company), (2) “A-” by Fitch (or, if not rated by Fitch, an equivalent rating by (A) at least two NRSROs (which may include DBRS and/or Xxxxx’x) or (B) one NRSRO (which may include DBRS or Xxxxx’x) and A.M. Best Company), and (3) “A3” by Xxxxx’x (or, if not rated by Xxxxx’x, at least “A-” by S&P (or, if not
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rated by S&P, an equivalent rating by (A) at least two NRSROs (which may include DBRS and/or Fitch) or (B) one NRSRO (which may include DBRS or Fitch) and A.M. Best Company)), and
(ii) in the case of fidelity bond coverage or errors and omissions insurance required to be maintained pursuant to Section 3.07(e) of this Agreement, a claims-paying ability rating at least equal to any one of the following: (a) “A-” by S&P, (b) “A3” by Xxxxx’x, (c) “A-” by Fitch or (d) “A:X” by A.M. Best Company; provided that (A) an insurance carrier shall be deemed to have the applicable claims-paying ability ratings set forth above if the obligations of such insurance carrier under the related insurance policy are guaranteed or backed in writing by an entity that has long-term unsecured debt obligations that are rated not lower than the ratings set forth above or claims-paying ability ratings that are not lower than the ratings set forth above; and (B) an insurance carrier will be deemed to have the applicable claims-paying ability ratings set forth in this clause (ii) if a Rating Agency Confirmation is obtained from the Rating Agency whose rating requirement has not been satisfied.
“Reserve Account”: Any of the accounts established and maintained pursuant to Section 3.03(d).
“Reserve Funds”: With respect to any Mortgage Loan or Serviced Loan Combination, any amounts delivered by the related Borrower to be held in escrow by or on behalf of the mortgagee representing: (i) reserves for repairs, replacements, capital improvements and/or environmental testing and remediation with respect to the related Mortgaged Property, or for ongoing or threatened litigation; (ii) reserves for tenant improvements and leasing commissions; (iii) reserves for debt service; or (iv) amounts to be applied as a Principal Prepayment on such Mortgage Loan or Serviced Loan Combination or held as Additional Collateral if certain leasing or other economic criteria in respect of the related Mortgaged Property are not met.
“Resolution Extension Period”: As defined in Section 2.03(b).
“Responsible Officer”: Any Vice President, any Trust Officer, any Assistant Secretary or any other officer of the Certificate Administrator or the Trustee as the case may be, assigned to the Corporate Trust Office of such party; in each case, with direct responsibility for the administration of this Agreement and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, and, in the case of any certification required to be signed by a Responsible Officer, such an officer whose name and specimen signature appears on a list of corporate trust officers furnished to the Master Servicer and the Special Servicer by the Trustee and the Certificate Administrator, as such list may from time to time be amended.
“Responsible Repurchase Party”: (i) With respect to each Mortgage Loan transferred to the Depositor by Natixis, Natixis; (ii) with respect to each Mortgage Loan transferred to the Depositor by WFB, WFB.
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“Restricted Group”: Collectively, the following persons and entities: (a) the Trustee, (b) the Exemption-Favored Parties; (c) the Depositor; (d) the Master Servicer; (e) the Special Servicer; (f) any Primary Servicer; (g) any Sub-Servicer; (h) any person that is considered a “sponsor” as defined in Section III of the Exemption; (i) each Borrower, if any, with respect to Mortgage Loans constituting more than 5.0% of the Cut-off Date Pool Balance; and (j) any and all Affiliates of any of the aforementioned Persons.
“Routine Disbursements”: As defined within the definition of “Special Servicer Decision”.
“Rule 15Ga-1”: Rule 15Ga-1 under the Exchange Act.
“Rule 15Ga-1 Notice”: As defined in Section 2.03(g).
“Rule 17g-5”: Rule 17g-5 under the Exchange Act.
“Rule 17g-5 Information Provider”: The Certificate Administrator acting in such capacity under this Agreement.
“Rule 17g-5 Information Provider’s Website”: The internet website of the Rule 17g-5 Information Provider, initially located within the Certificate Administrator’s website (xxx.xxxxxxx.xxx), under the “NRSRO” tab for the related transaction access to which is limited to the Depositor and to NRSROs who have provided an NRSRO Certification to the Rule 17g-5 Information Provider.
“Rule 144A”: Rule 144A under the Securities Act.
“Rule 144A Global Certificate”: With respect to any Class of Book-Entry Certificates, a single global Certificate, or multiple global Certificates collectively, registered in the name of the Depository or its nominee, in definitive, fully registered form without interest coupons, each of which Certificates bears a Qualified Institutional Buyer CUSIP number and does not bear a Regulation S Legend.
“S&P”: Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, or its successor-in-interest. If neither such rating agency nor any successor remains in existence, “S&P” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor (and such designation shall be deemed to be reasonable if the Person so designated is an NRSRO that has been regularly engaged in rating new issue commercial mortgage-backed securities transactions during the 12 months preceding the designation), notice of which designation shall be given to the other parties hereto, and specific ratings of S&P herein referenced shall be deemed to refer to the equivalent ratings of the party so designated. References herein to “applicable rating category” (other than such references to “highest applicable rating category”) shall, in the case of S&P, be deemed to refer to such applicable rating category of S&P, without regard to any plus or minus or other comparable rating qualification.
“Xxxxxxxx-Xxxxx Act”: The Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission’s staff).
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“Xxxxxxxx-Xxxxx Certification”: As defined in Section 11.09.
“Securities Act”: The Securities Act of 1933, as it may be amended from time to time.
“Security Agreement”: With respect to any Mortgage Loan, any security agreement, chattel mortgage or similar document or instrument creating in favor of the holder of such Mortgage a security interest in the personal property constituting security for repayment of such Mortgage Loan or related Pari Passu Companion Loan.
“Senior Consultation Period”: A period when either (i) the Class Principal Balance of the Class F Certificates, without regard to the allocation of any Appraisal Reduction Amounts to such Class, is less than 25% of the initial Class Principal Balance of the Class F Certificates or (ii) the then Majority Subordinate Certificateholder that holds a majority of the Class F Certificates (provided such Class is the Subordinate Class) has irrevocably waived its right to appoint a Subordinate Class Representative and to exercise any of the rights of the Majority Subordinate Certificateholder or cause the exercise of the rights of the Subordinate Class Representative under this Agreement pursuant to Section 3.23(i) and such rights have not been reinstated to a successor Majority Subordinate Certificateholder pursuant to Section 3.23(i).
No Senior Consultation Period shall limit the control and consultation rights of the “Controlling Note Holder” (as defined in the related Intercreditor Agreement) of any Non-Serviced Loan Combination.
“Service(s)(ing)”: In accordance with Regulation AB, the act of servicing and administering the Mortgage Loans or any other assets of the Trust by an entity that meets the definition of “servicer” set forth in Item 1101 of Regulation AB and is 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 market.
“Serviced Loan Combination”: Any mortgage loan serviced under this Agreement that is divided into one or more notes, which includes a mortgage note that is included in the Trust and one or more pari passu mortgage notes not included in the Trust. References herein to a Serviced Loan Combination shall be construed to refer to the aggregate indebtedness under the related notes. Each of the Patriots Park Loan Combination, the Stanford Research Park Loan Combination, the 760 & 000 Xxxxxxxxxxx Xxxxxx Loan Combination and the Hotel Xxxxx Loan Combination shall be a Serviced Loan Combinations. Prior to the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the Eastgate One Phases I-VII & XII Loan Combination shall be a Serviced Loan Combination. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the Eastgate One Phases I-VII & XII Loan Combination shall no longer be a Serviced Loan Combination. Prior to the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the Eastgate Two Phases VIII-X Loan Combination shall be a Serviced Loan Combination. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the Eastgate Two Phases VIII-X Loan Combination shall no longer be a Serviced Loan Combination. Prior to the Gateway Portfolio Pari Passu Companion Loan
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Securitization Date, the Gateway Portfolio Loan Combination shall be a Serviced Loan Combination. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the Gateway Portfolio Loan Combination shall no longer be a Serviced Loan Combination.
“Serviced Loan Combination Remittance Amount”: For each remittance date that the Master Servicer is required to make a distribution to a Serviced Pari Passu Companion Loan Holder pursuant to Section 3.04(j) and with respect to any Serviced Loan Combination and related Mortgaged Property (if it becomes an REO Property), any amount received by the Master Servicer (or, with respect to an REO Property, the Special Servicer) during the related Collection Period that is payable to the related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement or to be remitted to the Collection Account.
“Serviced Loan Combination Special Servicer”: Any Person responsible for performing the duties of Special Servicer hereunder with respect to a Serviced Loan Combination or any related REO Property.
“Serviced Mortgage Loan”: Any Mortgage Loan other than a Non-Trust-Serviced Pooled Mortgage Loan, if any. Each of the Patriots Park Mortgage Loan, the Stanford Research Park Mortgage Loan, the 760 & 000 Xxxxxxxxxxx Xxxxxx Mortgage Loan and the Hotel Xxxxx Mortgage Loan shall be a Serviced Mortgage Loan. Prior to the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the Eastgate One Phases I-VII & XII Mortgage Loan shall be a Serviced Mortgage Loan. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the Eastgate One Phases I-VII & XII Mortgage Loan shall no longer be a Serviced Mortgage Loan. Prior to the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the Eastgate Two Phases VIII-X Mortgage Loan shall be a Serviced Mortgage Loan. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the Eastgate Two Phases VIII-X Mortgage Loan shall no longer be a Serviced Mortgage Loan. Prior to the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the Gateway Portfolio Mortgage Loan shall be a Serviced Mortgage Loan. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the Gateway Portfolio Mortgage Loan shall no longer be a Serviced Mortgage Loan.
“Serviced Pari Passu Companion Loan”: With respect to any Serviced Loan Combination, any related mortgage note not included in the Trust that is serviced under this Agreement and that is generally payable on a pari passu basis with a Mortgage Loan included in the Trust to the extent set forth in the related Intercreditor Agreement. Each of the Patriots Park Pari Passu Companion Loans, the Stanford Research Park Pari Passu Companion Loan, the 760 & 800 Westchester Avenue Pari Passu Companion Loans and the Hotel Xxxxx Xxxx Passu Companion Loan shall be a Serviced Pari Passu Companion Loan. Prior to the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the Eastgate One Phases I-VII & XII Pari Passu Companion Loan shall be a Serviced Pari Passu Companion Loan. On and after the Eastgate One Phases I-VII & XII Pari Passu Companion Loan Securitization Date, the Eastgate One Phases I-VII & XII Pari Passu Companion Loan shall no longer be a Serviced Pari Passu Companion Loan. Prior to the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the Eastgate Two Phases VIII-X Pari Passu Companion Loan shall be a Serviced Pari Passu Companion Loan. On and after the Eastgate Two Phases VIII-X Pari Passu Companion Loan Securitization Date, the Eastgate Two Phases VIII-X Pari Passu Companion
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Loan shall no longer be a Serviced Pari Passu Companion Loan. Prior to the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the Gateway Portfolio Pari Passu Companion Loan shall be a Serviced Pari Passu Companion Loan. On and after the Gateway Portfolio Pari Passu Companion Loan Securitization Date, the Gateway Portfolio Pari Passu Companion Loan shall no longer be a Serviced Pari Passu Companion Loan.
“Serviced Pari Passu Companion Loan Administrative Fee Rate”: With respect to any Serviced Pari Passu Companion Loan, the “Administrative Fee Rate” for such loan as set forth in the related Other Pooling and Servicing Agreement.
“Serviced Pari Passu Companion Loan Custodial Account”: With respect to any Serviced Pari Passu Companion Loan(s), the separate account or sub-account created and maintained by the Master Servicer pursuant to Section 3.04(h) on behalf of the Certificateholders and any Serviced Pari Passu Companion Loan Holders, which shall be entitled “Xxxxx Fargo Bank, National Association [or name of successor Master Servicer], as Master Servicer for the Certificateholders and any Serviced Pari Passu Companion Loan Holders relating to, and for the benefit of Wilmington Trust, National Association [or name of successor Trustee], as Trustee, for the benefit of the Holders of, Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1, Serviced Pari Passu Companion Loan Custodial Account.” Amounts in the Serviced Pari Passu Companion Loan Custodial Account applicable to any Serviced Pari Passu Companion Loan shall not be assets of the Trust Fund, but instead shall be held by the Master Servicer on behalf of the Trust Fund (in respect of amounts reimbursable therefrom) and, the related Serviced Pari Passu Companion Loan Holders. Any such account or sub-account shall be an Eligible Account or a sub-account of an Eligible Account (including a sub-account of the Collection Account).
“Serviced Pari Passu Companion Loan Holder”: Any holder of a Serviced Pari Passu Companion Loan.
“Serviced Pari Passu Companion Loan Holder Register”: As defined in Section 3.26(b).
“Serviced Pari Passu Companion Loan Securities”: For so long as the related Pari Passu Mortgage Loan or any successor REO Mortgage Loan is part of the Mortgage Pool, any class of securities issued by an Other Securitization and backed by a Serviced Pari Passu Companion Loan. Any reference herein to a “series” of Serviced Pari Passu Companion Loan Securities shall refer to separate securitizations of the related Serviced Pari Passu Companion Loan.
“Serviced Pari Passu Companion Loan Early Remittance Date”: As defined in Section 3.04(j).
“Serviced Pari Passu Mortgage Loan”: Any Pari Passu Mortgage Loan that is a Serviced Mortgage Loan.
“Servicer Notice”: As defined in Section 11.17.
“Servicer Termination Event”: As defined in Section 7.01(a).
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“Servicing Account”: The account or accounts established and maintained pursuant to Section 3.03(a).
“Servicing Advances”: All customary, reasonable and necessary “out-of-pocket” costs and expenses, including reasonable attorneys’ fees and expenses, incurred or to be incurred, as the context requires, by the Master Servicer or the Special Servicer (or, if applicable, the Trustee) in connection with the servicing or administration of a Serviced Mortgage Loan or Serviced Loan Combination and any related Mortgaged Property as to which a default, delinquency or other unanticipated event has occurred or is imminent, or in connection with the administration of any Administered REO Property, including:
(1) any such costs and expenses associated with (a) compliance with the obligations of the Master Servicer and/or the Special Servicer set forth in Sections 2.03, 3.03(c) and 3.09, (b) the preservation, insurance, restoration, protection, operation and/or management of either a Mortgaged Property securing a Serviced Mortgage Loan, a Serviced Loan Combination or an Administered REO Property, including the cost of any “force-placed” insurance policy purchased by the Master Servicer or the Special Servicer to the extent such cost is allocable to a particular Mortgaged Property that the Master Servicer or Special Servicer is required to cause to be insured pursuant to Section 3.07(a), (c) obtaining any Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds in respect of any such Serviced Mortgage Loan, Serviced Loan Combination or any Administered REO Property, (d) any enforcement or judicial proceedings with respect to any such Mortgage Loan or Serviced Loan Combination, including foreclosures and similar proceedings, (e) the operation, management, maintenance and liquidation of any Administered REO Property, (f) obtaining any Appraisal required to be obtained hereunder, and (g) UCC filings (to the extent that the costs thereof are not reimbursed by the related Borrower), and
(2) the reasonable and direct out-of-pocket travel expenses incurred by the Special Servicer in connection with performing inspections pursuant to Section 3.12(a);
provided that, notwithstanding anything to the contrary, “Servicing Advances” shall not include (A) allocable overhead of the Master Servicer, the Special Servicer or the Trustee, as the case may be, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses, (B) costs incurred by or on behalf of any such party hereto or any Affiliate thereof in connection with its purchase of any Mortgage Loan or REO Property pursuant to any provision of this Agreement or any intercreditor agreement or similar agreement or (C) costs or expenses expressly required under this Agreement to be borne by the Master Servicer, the Special Servicer or the Trustee; and provided further, however, that “Servicing Advances” shall also include any other expenditure which is expressly designated as a “Servicing Advance” herein, including all Emergency Advances made by the Special Servicer or the Master Servicer at the direction of the Special Servicer hereunder.
“Servicing Criteria”: The criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such may be amended from time to time.
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“Servicing File”: Any documents (other than documents required to be part of the related Mortgage File, but including copies of documents required to be part of the related Mortgage File and originals or copies of all management agreements which are not covered by clause (xvii) of the definition of “Mortgage File” and originals of any Letters of Credit) that are in the possession or under the control of, or that are required (pursuant to the applicable Mortgage Loan Purchase Agreement, this Agreement or otherwise) to be delivered and actually have been delivered to, as the context may require, the Master Servicer or the Special Servicer and relating to the origination and servicing of any Mortgage Loan or Serviced Loan Combination or the administration of any REO Property and reasonably necessary for the ongoing administration and/or servicing of the applicable Mortgage Loan or Serviced Loan Combination, including any documents delivered by a Mortgage Loan Seller as described in clause (i) of Section 2.01(f).
“Servicing Function Participant”: Any Person, other than the Master Servicer, the Special Servicer and the Trust Advisor, that, within the meaning of Item 1122 of Regulation AB, is primarily responsible for performing activities addressed by the Servicing Criteria, unless such Person’s activities relate only to 5% or less of the Mortgage Loans (based on their Stated Principal Balance) or the Master Servicer or Special Servicer, as applicable, takes responsibility for the activities of such Person in accordance with SEC telephone interpretation 17.06 under Regulation AB. For clarification purposes, the Trustee and the Certificate Administrator are Servicing Function Participants.
“Servicing Officer”: Any officer or employee of the Master Servicer or the Special Servicer involved in, or responsible for, the administration and servicing of Mortgage Loans, whose name and specimen signature appear on a list of servicing officers furnished by such party to the Certificate Administrator, the Trustee, the Trust Advisor, the Custodian and the Depositor on the Closing Date, as such list may thereafter be amended from time to time by the Master Servicer or the Special Servicer, as the case may be.
“Servicing-Released Bid”: As defined in Section 7.01(c).
“Servicing-Retained Bid”: As defined in Section 7.01(c).
“Servicing Standard”: With respect to each of the Master Servicer and the Special Servicer, to service and administer the Mortgage Loans, the Loan Combinations and any REO Properties that such party is obligated to service and administer pursuant to this Agreement in the best interests and for the benefit of the Certificateholders (or, in the case of a Loan Combination, for the benefit of the Certificateholders and the related Pari Passu Companion Loan Holder(s)) (as determined by the Master Servicer or the Special Servicer, as the case may be, in its good faith and reasonable judgment), as a collective whole as if such Certificateholders and, if applicable, the related Pari Passu Companion Loan Holder(s) constituted a single lender, in accordance with applicable law and the terms of this Agreement, the terms of the respective Mortgage Loans or Loan Combinations, as applicable, and the terms of the related Intercreditor Agreement, as applicable (provided that in the event the Master Servicer or Special Servicer, as applicable, in its reasonably exercised judgment determines that following the terms of any Mortgage Loan Document would or potentially would result in an Adverse REMIC Event (for which determination, the Master Servicer and the Special Servicer will be entitled to rely on
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advice of counsel, the cost of which will be reimbursed as an Additional Trust Fund Expense by withdrawal from the Collection Account), the Master Servicer or the Special Servicer, as applicable, must comply with the REMIC Provisions to the extent necessary to avoid an Adverse REMIC Event) and, to the extent consistent with the foregoing, in accordance with the following standards:
(a) with the same care, skill, prudence and diligence as it services and administers comparable mortgage loans and manages real properties on behalf of third parties or on behalf of itself, whichever is the higher standard with respect to mortgage loans and REO properties that are comparable to those for which it is responsible hereunder, giving due consideration to customary and usual standards of practice utilized by prudent institutional commercial mortgage loan servicers under comparable circumstances;
(b) with a view to: (i) in the case of the Master Servicer, the timely collection of all scheduled payments of principal and interest, including Balloon Payments, under the Serviced Mortgage Loans (or Serviced Loan Combination, as applicable) and the full collection of all Prepayment Premiums and Yield Maintenance Charges that may become payable under the Serviced Mortgage Loans (or Serviced Loan Combination, as applicable), and (ii) in the case of the Special Servicer and any Serviced Mortgage Loan that is (A) a Specially Serviced Mortgage Loan or (B) a Serviced Mortgage Loan (or Serviced Loan Combination, as applicable) as to which the related Mortgaged Property has become an Administered REO Property, the maximization of recovery on such Mortgage Loan to the Certificateholders (or, in the case of a Serviced Loan Combination, to the Certificateholders and the related Serviced Pari Passu Companion Loan Holder(s), as applicable), as a collective whole, of principal and interest, including Balloon Payments, on a present value basis (the relevant discounting of anticipated collections that will be distributable to the Certificateholders (or, in the case of a Serviced Loan Combination, to the Certificateholders and the related Serviced Pari Passu Companion Loan Holder(s), as applicable), as a collective whole, to be performed at a rate determined by the Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of a Serviced Loan Combination, in no event less than the weighted average of the Net Mortgage Rates for the Mortgage Loans and/or Serviced Pari Passu Companion Loans in such Serviced Loan Combination)); and
(c) without regard to any potential conflict of interest arising from (i) any known relationship that the Master Servicer or the Special Servicer, as the case may be, or any of its Affiliates may have with a related Borrower, a Mortgage Loan Seller or any other party to this Agreement, (ii) the ownership of any Certificate or any interest in a Serviced Pari Passu Companion Loan by the Master Servicer or the Special Servicer, as the case may be, or any of their respective Affiliates, (iii) the obligation of the Master Servicer to make Advances or otherwise to incur servicing expenses with respect to any Serviced Mortgage Loan, Serviced Pari Passu Companion Loan or Administered REO Property (or, if applicable, to make P&I Advances with respect to a Non-Trust-Serviced Pooled Mortgage Loan), (iv) the obligation of the Special Servicer to make, or direct the Master Servicer to make, Servicing Advances (including Emergency Advances) or otherwise to incur servicing expenses with respect to any Serviced Mortgage Loan,
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Serviced Pari Passu Companion Loan or Administered REO Property, (v) the right of the Master Servicer or the Special Servicer, as the case may be, or any of its Affiliates to receive reimbursement of costs, or the sufficiency of any compensation payable to it, hereunder or with respect to any particular transaction, (vi) any ownership, servicing and/or management by the Master Servicer or the Special Servicer, as the case may be, or any of its Affiliates, of any other mortgage loans or real property, (vii) the ownership by the Master Servicer or the Special Servicer, as the case may be, or any of its Affiliates of any other debt owed by, or secured by ownership interests in, any of the Borrowers or any Affiliate of a Borrower, and (viii) the obligations of the Master Servicer or the Special Servicer, as the case may be, or any of its Affiliates to repurchase any Mortgage Loan from the Trust Fund, or to indemnify the Trust Fund, in any event as a result of a Material Breach or a Material Document Defect;
provided that the foregoing standards shall apply with respect to a Non-Trust-Serviced Pooled Mortgage Loan and any related REO Property only to the extent that the Master Servicer or the Special Servicer has any express duties or rights to grant consent with respect thereto pursuant to this Agreement.
“Servicing Transfer Event”: With respect to any Serviced Mortgage Loan or Serviced Loan Combination, the occurrence of any of the events described in clauses (a) through (h) of the definition of “Specially Serviced Mortgage Loan”.
“Significant Obligor”: (a) Any obligor (as defined in Item 1101(i) of Regulation AB) or group of affiliated obligors on any Mortgage Loan or group of Mortgage Loans that represent, as of the Closing Date, 10% or more of the principal balance of the Mortgage Pool as of the Cut-off Date; or (b) any single Mortgaged Property or group of Mortgaged Properties securing any Mortgage Loan or Cross-Collateralized Group and/or Cross-Collateralized Mortgage Loans that represent, as of the Closing Date, 10% or more of the pool balance of the Mortgage Pool as of the Cut-off Date. For the avoidance of doubt, no Mortgaged Property or obligor (as defined in Item 1101(i) of Regulation AB) is a Significant Obligor in respect of the Trust as of the Closing Date.
“Similar Law”: Any federal, state or local law that is materially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.
“Sole Certificateholder(s)”: Any Holder or group of Holders, as the case may be, of 100% of the then-outstanding Certificates.
“Space Lease”: The space or occupancy lease pursuant to which any Borrower holds a leasehold interest in the related Mortgaged Property, together with any estoppels or other agreements executed and delivered by the lessor in favor of the lender under the related Mortgage Loan(s).
“Special Notice”: Any of the following delivered by any Person hereunder to any other Person: (i) any notice of a modification, waiver or amendment of any term of any Mortgage Loan; (ii) any notice of Final Distribution Date; (iii) any notice of the occurrence of a Servicer Termination Event; (iv) any notice of the resignation of the Trustee or the Certificate
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Administrator and notice of the acceptance of appointment by the successor trustee or certificate administrator; (v) any Officer’s Certificate of the Master Servicer or the Special Servicer in connection with a determination that an Advance is or would be a Nonrecoverable Advance (including supporting documentation); (vi) any notice of the termination of the Master Servicer or the Special Servicer; and (vii) any notice of the termination of the Trust Fund.
“Special Servicer”: Rialto Capital Advisors, LLC, or its successor-in-interest, or any successor special servicer appointed as provided herein.
“Special Servicer Decision”: Any of the following with respect to a Non-WFB Mortgage Loan:
(a) approving leases, lease modifications or amendments or any requests for subordination, non-disturbance and attornment or other similar agreements for leases in excess of the lesser of (i) 30,000 square feet of the improvements at the related Mortgaged Property and (ii) 30% of the net rentable area of the improvements at the related Mortgaged Property;
(b) approving annual budgets for the related Mortgaged Property with material (more than 15%) increases in operating expenses or payments to entities actually known by the Master Servicer to be Affiliates of the related Borrower (excluding affiliated managers paid at fee rates agreed to at the origination of the related Mortgage Loan);
(c) any requests for the funding or disbursement of amounts from any escrow accounts, reserve funds or letters of credit held as “performance”, “earn-out”, “holdback” or similar escrows or reserves, including the funding or disbursement of any such amounts with respect to any Mortgage Loan, but excluding, as to any Mortgage Loan that is not a Specially Serviced Mortgage Loan, any routine and/or customary escrow and reserve fundings or disbursements for which the satisfaction of performance-related criteria or lender discretion is not required or permitted pursuant to the terms of the related Mortgage Loan Documents (for the avoidance of doubt, any request with respect to a Mortgage Loan that is not a Specially Serviced Mortgage Loan for the funding or disbursement of ordinary course impounds, repair and replacement reserves, lender approved budget and operating expenses, and tenant improvements pursuant to an approved lease, each in accordance with the Mortgage Loan Documents (all such fundings and disbursements being collectively referred to as “Routine Disbursements”) or any other funding or disbursement as mutually agreed upon by the Master Servicer and Special Servicer, shall not constitute a Special Servicer Decision; provided, however, that in the case of any Mortgage Loan whose escrows, reserves, holdbacks and related letters of credit exceed, in the aggregate, at the related origination date, 10% of the initial principal balance of such Mortgage Loan (which Mortgage Loans are identified on Schedule XI hereto), no such funding or disbursement of such escrows, reserves, holdbacks or letters of credit shall be deemed to constitute a Routine Disbursement, and shall instead constitute Special Servicer Decisions, except for the routine funding of tax payments and insurance premiums when due and payable (provided the Mortgage Loan is not a Specially Serviced Mortgage Loan);
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(d) requests to incur additional debt in accordance with the terms of the applicable Mortgage Loan Documents;
(e) requests for property releases or substitutions, other than (i) grants of easements or rights of way that do not materially affect the use or value of a Mortgaged Property or the Borrower’s ability to make any payments with respect to the related Serviced Mortgage Loan or any Serviced Pari Passu Companion Loan, (ii) releases of non-material parcels of a Mortgaged Property (including, without limitation, any such releases (A) to which the related Mortgage Loan Documents expressly require the mortgagee thereunder to make such releases upon the satisfaction of certain conditions (and the conditions to the release that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the release set forth in the related Mortgage Loan Documents that do not include any other approval or exercise)) and such release is made as required by the related Mortgage Loan Documents or (B) that are related to any condemnation action that is pending, or threatened in writing, and would affect a non-material portion of the Mortgaged Property) or (iii) the release of collateral securing any Mortgage Loan in connection with a defeasance of such collateral;
(f) approving any transfers of an interest in the Borrower under a Serviced Mortgage Loan, unless such transfer (i) is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a Person acquiring less than a majority interest in such Borrower and (ii) does not involve incurring new mezzanine financing or a change in control of the Borrower;
(g) approval of any waiver regarding the receipt of financial statements (other than immaterial timing waivers including late financial statements);
(h) approval of easements that materially affect the use or value of a Mortgaged Property or the borrower’s ability to make any payments with respect to the related Mortgage Loan; and
(i) agreeing to any modification of the type of defeasance collateral required under the Mortgage Loan documents such that defeasance collateral other than direct, non-callable obligations of the United States of America would be permitted;
provided, however, that notwithstanding the foregoing, “Special Servicer Decision” shall not include any matter listed in the foregoing clauses (a) through (i) (1) requested with respect to a Non-WFB Mortgage Loan if the Master Servicer and the Special Servicer have mutually agreed, as contemplated by Section 3.08(a) or Section 3.20(a), as applicable, of this Agreement, that the Master Servicer will process such matter with respect to such Mortgage Loan or (2) requested with respect to any WFB Mortgage Loan.
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“Special Servicing Fee”: With respect to each Specially Serviced Mortgage Loan and each REO Mortgage Loan (other than any Non-Trust-Serviced Pooled Mortgage Loan), the fee designated as such and payable to the Special Servicer pursuant to the first paragraph of Section 3.11(c).
“Special Servicing Fee Rate”: With respect to each Specially Serviced Mortgage Loan and each REO Mortgage Loan (other than any Non-Trust-Serviced Pooled Mortgage Loan), (a) 0.25% per annum or (b) if the rate in clause (a) would result in a Special Servicing Fee that would be less than $3,500 with respect to any Mortgage Loan in any given month, then the Special Servicing Fee Rate for such month for such Specially Serviced Mortgage Loan or REO Mortgage Loan shall be a rate equal to such higher rate as would result in a Special Servicing Fee equal to $3,500 for such month with respect to such Specially Serviced Mortgage Loan or REO Mortgage Loan.
“Specially Designated Mortgage Loan Documents”: With respect to any Mortgage Loan, subject to Section 1.04, the following documents on a collective basis:
(i) the original executed Mortgage Note or alternatively, if the original executed Mortgage Note has been lost, a lost note affidavit and indemnity with a copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage, in each case (unless the particular item has been sent for recording but has not been returned from the applicable recording office) with evidence of recording indicated thereon; provided that if such original Mortgage cannot be delivered with evidence of recording thereon on or before the 90th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation, or because the public recording office retains the original or because such original Mortgage has been lost, there shall be delivered to the Custodian a true and correct copy of such Mortgage, together with (A) in the case of a delay caused by the public recording office, an Officer’s Certificate of the applicable Mortgage Loan Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or retained by the appropriate public recording office or (B) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;
(iii) an original executed assignment, in recordable form (except for recording information not yet available if the instrument being assigned has not been returned from the applicable recording office), of the Mortgage, in favor of “Wilmington Trust, National Association, as Trustee for the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through Certificates, Series 2015-NXS1”, or, in the case of any Mortgage Loan included in a Serviced Loan Combination, in favor of “Wilmington Trust, National Association, as Trustee for the registered holders of Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1, Commercial Mortgage Pass-Through
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Certificates, Series 2015-NXS1, and as lead lender on behalf of any Serviced Pari Passu Companion Loan Holder(s) secured by the [insert name of Mortgaged Property]” (or a copy thereof, certified to be the copy of such assignment submitted or to be submitted for recording);
(iv) the original or a copy of the policy or certificate of lender’s title insurance issued in connection with such Mortgage Loan (or, if the policy has not yet been issued, an original or copy of a written commitment “marked-up” at the closing of such Mortgage Loan, interim binder or the pro forma title insurance policy, in each case evidencing a binding commitment to issue such policy);
(v) if a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest, the original or a copy of the related Ground Lease or Space Lease;
(vi) if any documents relating to, evidencing or constituting Additional Collateral for such Mortgage Loan are in the form of a Letter of Credit, a photocopy of such Letter of Credit (and, except in the case of a Non-Trust-Serviced Pooled Mortgage Loan, the original of such Letter of Credit shall be delivered to the Master Servicer); and
(vii) if the related Mortgaged Property is a hospitality property that is subject to a franchise, management or similar arrangement, (a) an original or a copy of any franchise, management or similar agreement and (b) either (i) a signed copy of the estoppel certificate or comfort letter delivered by the franchisor, manager or similar person, as applicable, for the benefit of the holder of the Mortgage Loan in connection with the Mortgage Loan Seller’s origination or acquisition of the Mortgage Loan, together with such instrument(s) of notice or transfer (if any) as are necessary to transfer or assign to the Trust or the Trustee the benefits of such estoppel certificate or comfort letter, or (ii) a copy of the estoppel certificate or comfort letter delivered by the franchisor, manager or similar person, as applicable, for the benefit of the holder of the Mortgage Loan in connection with such origination or acquisition of the Mortgage Loan or Loan Combination, together with a signed copy or a fax copy of a new estoppel certificate or comfort letter (in substantially the same form and substance as the estoppel certificate or comfort letter delivered in connection with such origination or acquisition) by the franchisor, manager or similar person, as applicable, for the benefit of the Trust or the Trustee (and, if a fax copy of a new estoppel certificate or comfort letter is delivered, then the original copy shall be included in the “Mortgage File” promptly following receipt thereof by the related Mortgage Loan Seller);
provided, however, that in the case of (A) a Non-Trust-Serviced Pooled Mortgage Loan, (1) the “Specially Designated Mortgage Loan Document” contemplated by clause (ii) above need only consist of a copy of the related Mortgage in recordable form provided to the related Non-Trust Trustee or Non-Trust Custodian pursuant to the related Non-Trust Pooling and Servicing Agreement, but need not reflect evidence of recordation in the name of the related Non-Trust
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Trustee or the related trust established under such related Non-Trust Pooling and Servicing Agreement, and (2) the “Specially Designated Mortgage Loan Document” contemplated by clause (iii) above need only be a copy of the assignment in the name of the applicable Non-Trust Trustee and (B) in the case of each of the Eastgate One Phases I-VII & XII Mortgage Loan, the Eastgate Two Phases VIII-X Mortgage Loan and the Gateway Portfolio Mortgage Loan, prior to the related Pari Passu Companion Loan Securitization Date, the “Specially Designated Mortgage Loan Documents” contemplated by clauses (ii) and (iii) above need only be assigned in blank.
“Specially Serviced Mortgage Loan”: Any Serviced Mortgage Loan (including any related REO Mortgage Loan) or any Serviced Loan Combination (including any related REO Mortgage Loan) as to which any of the following events has occurred:
(a) the related Borrower has failed to make when due any Balloon Payment, and the Borrower has not delivered to the Master Servicer or the Special Servicer, on or before the due date of such Balloon Payment, a written and fully executed (subject only to customary final closing conditions) refinancing commitment from an acceptable lender and reasonably satisfactory in form and substance to the Master Servicer or the Special Servicer, as applicable (and the Master Servicer or the Special Servicer, as applicable, shall promptly forward such commitment to the Special Servicer or the Master Servicer, as applicable) which provides that such refinancing will occur within 120 days after the date on which such Balloon Payment will become due (provided that such Mortgage Loan or Serviced Loan Combination shall immediately become a Specially Serviced Mortgage Loan if either (x) such refinancing does not occur before the expiration of the time period for refinancing specified in such binding commitment or (y) the Master Servicer is required to make a P&I Advance in respect of such Mortgage Loan (or, in the case of any Serviced Loan Combination, in respect of the Mortgage Loan included in the same Serviced Loan Combination) at any time prior to such a refinancing); or
(b) the related Borrower has failed to make when due any Monthly Payment (other than a Balloon Payment) or any other payment (other than a Balloon Payment) required under the related Mortgage Note or the related Mortgage, which failure has continued unremedied for sixty (60) days; or
(c) the Master Servicer determines (in accordance with the Servicing Standard) or receives from the Special Servicer a written determination of the Special Servicer (which determination the Special Servicer shall make in accordance with the Servicing Standard and, to the extent a Subordinate Control Period is then in effect, with the consent or deemed consent of the Majority Subordinate Certificateholder, and, to the extent a Collective Consultation Period is then in effect, in consultation with the Majority Subordinate Certificateholder), that a default in making any Monthly Payment (other than a Balloon Payment) or any other material payment (other than a Balloon Payment) required under the related Mortgage Note or the related Mortgage is likely to occur in the foreseeable future, and such default is likely to remain unremedied for at least sixty (60) days beyond the date on which the subject payment will become due; or the Master Servicer determines (in accordance with the Servicing Standard) or receives from the Special Servicer a written determination of the Special Servicer (which determination the Special Servicer shall make in accordance with the Servicing Standard and, to the extent
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a Subordinate Control Period is then in effect, with the consent or deemed consent of the Majority Subordinate Certificateholder, and, to the extent a Collective Consultation Period is then in effect, in consultation with the Majority Subordinate Certificateholder), that a default in making a Balloon Payment is likely to occur in the foreseeable future, and such default is likely to remain unremedied for at least sixty (60) days beyond the date on which such Balloon Payment will become due (or, if the Borrower has delivered a written and fully executed (subject only to customary final closing conditions) refinancing commitment from an acceptable lender and reasonably satisfactory in form and substance to the Master Servicer or the Special Servicer (and the Master Servicer or the Special Servicer, as applicable, shall promptly forward such commitment to the Special Servicer or Master Servicer, as applicable) which provides that such refinancing will occur within 120 days following the date on which such Balloon Payment will become due, the Master Servicer determines (in accordance with the Servicing Standard) or receives from the Special Servicer a written determination of the Special Servicer (which determination the Special Servicer shall make in accordance with the Servicing Standard and, to the extent a Subordinate Control Period is then in effect, with the consent or deemed consent of the Majority Subordinate Certificateholder, and, to the extent a Collective Consultation Period is then in effect, in consultation with the Majority Subordinate Certificateholder), that (A) the Borrower is likely not to make one or more Assumed Monthly Payments prior to such a refinancing or (B) such refinancing is not likely to occur within 120 days following the date on which such Balloon Payment will become due); or
(d) there shall have occurred a default (including, in the Master Servicer’s or the Special Servicer’s judgment, the failure of the related Borrower to maintain any insurance required to be maintained pursuant to the related Mortgage Loan Documents, unless such default has been waived in accordance with Section 3.07 or 3.20 hereof) under the related Mortgage Loan Documents, other than as described in clause (a) or (b) above, that may, in the good faith and reasonable judgment of the Master Servicer or the Special Servicer (and, in the case of the Special Servicer and to the extent a Subordinate Control Period is then in effect, with the consent or deemed consent of the Majority Subordinate Certificateholder, and, to the extent a Collective Consultation Period is then in effect, in consultation with the Majority Subordinate Certificateholder), materially impair the value of the related Mortgaged Property as security for such Mortgage Loan or Serviced Loan Combination or otherwise materially and adversely affect the interests of Certificateholders (or, in the case of any Serviced Loan Combination, the interests of the related Serviced Pari Passu Companion Loan Holder(s)), which default has continued unremedied for the applicable cure period under the terms of such Mortgage Loan or Serviced Loan Combination (or, if no cure period is specified, sixty (60) days); or
(e) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law or the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall
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have been entered against the related Borrower and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or
(f) the related Borrower shall have consented to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to such Borrower or of or relating to all or substantially all of its property; or
(g) the related Borrower shall have admitted in writing its inability to pay its debts generally as they become due, filed a petition to take advantage of any applicable insolvency or reorganization statute, made an assignment for the benefit of its creditors, or voluntarily suspended payment of its obligations; or
(h) the Master Servicer or the Special Servicer shall have received notice of the commencement of foreclosure or similar proceedings with respect to the corresponding Mortgaged Property; or
(i) the Master Servicer or the Special Servicer (and in the case of the Special Servicer, during a Subordinate Control Period, with the consent of the Subordinate Class Representative) determines that (i) a default (including, in the Master Servicer’s or the Special Servicer’s judgment, the failure of the related Borrower to maintain any insurance required to be maintained pursuant to the related Mortgage Loan Documents, unless such default has been waived in accordance with Section 3.07 or Section 3.20 hereof) under the Mortgage Loan Documents (other than as described in clause (c) above) is imminent or reasonably foreseeable, (ii) such default will materially impair the value of the corresponding Mortgaged Property as security for the Mortgage Loan or Serviced Pari Passu Companion Loan (if any) or otherwise materially and adversely affect the interests of Certificateholders (or the holder of the related Serviced Pari Passu Companion Loan) and (iii) the default is likely to continue unremedied for the applicable cure period under the terms of the Mortgage Loan Documents, or, if no cure period is specified and the default is capable of being cured, for sixty (60) days;
provided that a Serviced Mortgage Loan or Serviced Loan Combination shall cease to be a Specially Serviced Mortgage Loan when a Liquidation Event has occurred in respect of such Serviced Mortgage Loan or Serviced Loan Combination, or at such time as such of the following as are applicable occur with respect to the circumstances identified above that caused such Serviced Mortgage Loan or Serviced Loan Combination to be characterized as a Specially Serviced Mortgage Loan (and provided that no other Servicing Transfer Event then exists):
(I) with respect to the circumstances described in clauses (a) and (b) above, the related Borrower has made three consecutive full and timely Monthly Payments under the terms of such Serviced Mortgage Loan or Serviced Loan Combination (as such terms may be changed or modified in connection with a bankruptcy or similar proceeding involving the related Borrower or by reason of a modification, extension, waiver or amendment granted or agreed to by the Master Servicer or the Special Servicer pursuant to Section 3.20);
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(II) with respect to the circumstances described in clauses (c), (e), (f), (g) and (i) above, such circumstances cease to exist in the good faith reasonable judgment, exercised in accordance with the Servicing Standard, of the Special Servicer;
(III) with respect to the circumstances described in clause (d) above, the default is cured in the good faith reasonable judgment, exercised in accordance with the Servicing Standard, of the Special Servicer; and
(IV) with respect to the circumstances described in clause (h) above, such proceedings are terminated.
“Stanford Research Park Loan Combination”: As defined in the Preliminary Statement.
“Stanford Research Park Mortgage Loan”: As defined in the Preliminary Statement.
“Stanford Research Park Pari Passu Companion Loan”: As defined in the Preliminary Statement.
“Startup Day”: With respect to each REMIC Pool, the day designated as such in Section 2.11(a) (in the case of REMIC I), Section 2.13(a) (in the case of REMIC II) or Section 2.15(a) (in the case of REMIC III), as applicable.
“Stated Maturity Date”: With respect to any Mortgage Loan or Serviced Pari Passu Companion Loan, the Due Date specified in the related Mortgage Note (as in effect on the Closing Date or, in the case of a Replacement Mortgage Loan, on the related date of substitution) on which the last payment of principal is due and payable under the terms of such Mortgage Loan or Serviced Pari Passu Companion Loan, without regard to any change in or modification of such terms in connection with a bankruptcy or similar proceeding involving the related Borrower or a modification, waiver or amendment of such Mortgage Loan or Serviced Pari Passu Companion Loan granted or agreed to by the Master Servicer or Special Servicer pursuant to Section 3.20 (or, in the case of (i) a Non-Trust-Serviced Pooled Mortgage Loan, by the related Non-Trust Master Servicer or the related Non-Trust Special Servicer pursuant to the related Non-Trust Pooling and Servicing Agreement and (ii) an ARD Mortgage Loan, without regard to its Anticipated Repayment Date).
“Stated Principal Balance”: With respect to any Mortgage Loan or Serviced Loan Combination (or any component thereof) (and any successor REO Mortgage Loan with respect thereto), a principal balance which (a) initially shall equal the unpaid principal balance thereof as of the related Cut-off Date or, in the case of any Replacement Mortgage Loan, as of the related date of substitution, in any event after application of all payments of principal due thereon on or before such date, whether or not received, and (b) shall be permanently reduced on each subsequent Distribution Date (to not less than zero) by the sum of:
(i) that portion, if any, of the Unadjusted Principal Distribution Amount for such Distribution Date that is attributable to such Mortgage Loan or
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Serviced Loan Combination (or any component thereof) (or successor REO Mortgage Loan); and
(ii) the principal portion of any Realized Loss incurred in respect of such Mortgage Loan or Serviced Loan Combination (or any component thereof) (or successor REO Mortgage Loan) during the related Collection Period;
provided that, if a Liquidation Event occurs in respect of any Mortgage Loan or Serviced Loan Combination (or any component thereof) or the related REO Mortgage Loan, then the “Stated Principal Balance” of such Mortgage Loan or Serviced Loan Combination (or any component thereof) or of the related REO Mortgage Loan, as the case may be, shall be zero commencing as of the close of business on the Distribution Date next following the Collection Period in which such Liquidation Event occurred; provided, further, that the Stated Principal Balance of any Non-Trust-Serviced Pooled Mortgage Loan will be calculated in accordance with the definition of “Stated Principal Balance” in the related Non-Trust Pooling and Servicing Agreement. For purposes of this definition, monthly remittances to any Serviced Pari Passu Companion Loan Holders are deemed made on the Distribution Date in each calendar month.
“Subordinate Class”: The most subordinate Class among the Classes of Control-Eligible Certificates that has a Class Principal Balance, net of Appraisal Reduction Amounts allocable thereto, that is at least equal to 25% of its initial Class Principal Balance.
“Subordinate Class Certificateholder”: A Holder of any Certificate of the Subordinate Class.
“Subordinate Class Representative”: As defined in Section 3.23(a).
“Subordinate Control Period”: Unless a Senior Consultation Period is deemed to occur and is continuing pursuant to clause (ii) of the definition of “Senior Consultation Period”, any period when the Class Principal Balance of the Class F Certificates, net of any Appraisal Reduction Amounts allocable to such Class, is at least 25% of the initial Class Principal Balance of the Class F Certificates.
No Subordinate Control Period shall limit the control and consultation rights of the “Controlling Note Holder” (as defined in the related Intercreditor Agreement) of any Non-Serviced Loan Combination.
“Sub-Servicer”: Any Person with which the Master Servicer or the Special Servicer has entered into a Sub-Servicing Agreement with respect to the Mortgage Loans or Serviced Loan Combinations in accordance with the terms hereof.
“Sub-Servicing Agreement”: The written contract between the Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the other hand, relating to servicing and administration of Mortgage Loans or Serviced Loan Combinations as provided in Section 3.22.
“Sub-Servicing Entity”: Any Sub-Servicer or Servicing Function Participant retained by the Master Servicer (other than a Designated Sub-Servicer) or the Special Servicer.
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“Substitution Shortfall Amount”: In connection with the substitution of one or more Replacement Mortgage Loans for any Defective Mortgage Loan, the amount, if any, by which the Purchase Price for such Defective Mortgage Loan (calculated as if it were to be repurchased, instead of replaced, on the relevant date of substitution), exceeds the initial Stated Principal Balance or the initial aggregate Stated Principal Balance, as the case may be, of such Replacement Mortgage Loan(s) as of the date of substitution.
“Successful Bidder”: As defined in Section 7.01(c).
“Tax Administrator”: The Certificate Administrator, in its capacity as tax administrator hereunder, or any successor tax administrator appointed as herein provided.
“Tax Administrator Fee”: At any time when the Certificate Administrator is not also the Tax Administrator, the portion of the Certificate Administrator Fee payable to the Tax Administrator in an amount agreed to by the Certificate Administrator and the Tax Administrator.
“Tax Matters Person”: With respect to any REMIC Pool, the Person designated as the “tax matters person” of such REMIC Pool in the manner provided under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1, which Person shall, pursuant to Section 10.01(b), be the Holder of Certificates evidencing the largest Percentage Interest in the Class R Certificates.
“Tax Returns”: The federal income tax return on IRS Form 1066, U.S. Real Estate Mortgage Investment Conduit Income (REMIC) Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest Holder of REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed on behalf of each REMIC Pool due to its classification as a REMIC under the REMIC Provisions and the federal income tax return to be filed by the Certificate Administrator on behalf of the Grantor Trust Pool due to its classification as a Grantor Trust, together with any and all other information, reports or returns that may be required to be furnished to the Certificateholders or filed with the IRS under any applicable provisions of federal tax law or any other governmental taxing authority under applicable state or local tax laws.
“Termination Price”: As defined in Section 9.01(a).
“Third Party Reports”: With respect to any Mortgaged Property, the related Appraisal, Phase I environmental report, Phase II environmental report, seismic report or property condition report, if any.
“TIA”: As defined in Section 12.12.
“TIA Applicability Determination”: As defined in Section 12.12.
“Transfer”: Any direct or indirect transfer, sale, pledge, hypothecation, or other form of assignment of any Ownership Interest in a Certificate.
“Transfer Affidavit and Agreement”: As defined in Section 5.02(d).
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“Transferee”: Any Person who is acquiring by Transfer any Ownership Interest in a Certificate.
“Transferor”: Any Person who is disposing by Transfer of any Ownership Interest in a Certificate.
“Trust”: The trust created hereby.
“Trust Advisor”: Trimont Real Estate Advisors, Inc., and its successors in interest and assigns, or any successor trust advisor appointed as herein provided.
“Trust Advisor Annual Report”: As defined in Section 3.28(a)(ii).
“Trust Advisor Consulting Fee”: The fee designated and payable as such and payable to the Trust Advisor pursuant to Section 3.28(l).
“Trust Advisor Expenses”: With respect to any Distribution Date, an amount equal to any unreimbursed indemnification amounts or expenses payable to (i) the Trust Advisor pursuant to Section 3.28(k) of this Agreement (other than any Trust Advisor Consulting Fees and the Trust Advisor Ongoing Fee) and (ii) the Non-Trust Trust Advisor pursuant to Section 3.05(a)(xix) of this Agreement.
“Trust Advisor Ongoing Fee”: With respect to each Serviced Mortgage Loan and any related successor REO Mortgage Loan, the fee designated and payable as such to the Trust Advisor pursuant to Section 3.28(k). For the avoidance of doubt, no Trust Advisor Ongoing Fee shall accrue on the principal balance of, or be payable with respect to, the Eastgate One Phases I-VII & XII Mortgage Loan, the Eastgate Two Phases VIII-X Mortgage Loan, the 000 Xxxx 00xx Xxxxxx Mortgage Loan, the Gateway Portfolio Mortgage Loan or the related Pari Passu Companion Loan.
“Trust Advisor Ongoing Fee Rate”: 0.002% per annum.
“Trust Fund”: All of the assets of all the REMIC Pools, the Grantor Trust Pool and the Loss of Value Reserve Fund. For the avoidance of doubt, no Pari Passu Companion Loan is an asset of the Trust Fund.
“Trustee”: Wilmington Trust, National Association, in its capacity as trustee hereunder, or any successor trustee appointed as herein provided.
“Trustee Fee”: An amount payable to the Trustee as a portion of the Certificate Administrator Fee, equal to a fee of $210.00 per month, pursuant to Section 8.05(a).
“UCC”: The Uniform Commercial Code in effect in the applicable jurisdiction.
“UCC Financing Statement”: A financing statement filed, or to be filed, pursuant to the UCC.
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“Unadjusted Distributable Certificate Interest”: As defined in the definition of “Interest Distribution Amount.”
“Unadjusted Principal Distribution Amount”: As defined in the definition of “Principal Distribution Amount.”
“Uncertificated Accrued Interest”: As defined in Section 2.11(g) with respect to any REMIC I Regular Interest for any Interest Accrual Period and in Section 2.13(g) with respect to any REMIC II Regular Interest for any Interest Accrual Period.
“Uncertificated Distributable Interest”: As defined in Section 2.11(g) with respect to any REMIC I Regular Interest for any Distribution Date and in Section 2.13(g) with respect to any REMIC II Regular Interest for any Distribution Date.
“Uncertificated Principal Balance”: The principal balance outstanding from time to time of any REMIC I Regular Interest (calculated in accordance with Section 2.11(e) hereof) or any REMIC II Regular Interest (calculated in accordance with Section 2.13(e) hereof).
“Underwriters”: With respect to the Registered Certificates, WFS, Barclays and Natixis Securities, and with respect to the Non-Registered Certificates, WFS, Barclays and Natixis Securities.
“United States Securities Person”: Any “U.S. person” as defined in Rule 902(k) of Regulation S.
“United States Tax Person”: A citizen or resident of the United States, a corporation, partnership or other entity created or organized in, or under the laws of, the United States, any State thereof or the District of Columbia, an estate whose income from sources without the United States is includible in gross income for United States federal income tax purposes regardless of its source or a trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States Tax Persons have the authority to control all substantial decisions of the trust, all within the meaning of Section 7701(a)(30) of the Code (or, to the extent provided in the applicable Treasury Regulations, certain trusts in existence on August 20, 1996 that have elected to be treated as United States Tax Persons).
“Unliquidated Advance”: Any Advance previously made by a party hereto that has been previously reimbursed, as between the Person that made the Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of a Workout-Delayed Reimbursement Amount pursuant to Section 3.05(a)(II)(iii) but that has not been recovered from the Borrower or otherwise from collections on or the proceeds of the Mortgage Loan, Serviced Loan Combination or REO Property in respect of which the Advance was made.
“USPAP”: The Uniform Standards of Professional Appraisal Practices.
“Voting Rights”: The voting rights evidenced by the respective Certificates. At all times during the term of this Agreement: 98.0% of the Voting Rights shall be allocated among all the Holders of the various Classes of Principal Balance Certificates in proportion to
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the respective Class Principal Balances of such Classes (solely in connection with a proposed termination and replacement of the Special Servicer under Section 6.05(b) or Section 6.05(c) or the Trust Advisor under Section 3.28(m) or Section 3.28(n), as notionally reduced by any Appraisal Reduction Amounts allocable to the respective Classes of Certificates) and 2.0% to be allocated among the Holders of the Interest Only Certificates on a pro rata basis based on their respective outstanding Class Notional Amounts at the time of determination). For purposes of this definition, the Class PEX Components shall be treated as if they were Principal Balance Certificates, and the Class A-S Certificates and the Class A-S-PEX Component shall be considered as if they together constitute a single “Class”, the Class B Certificates and the Class B-PEX Component shall be considered as if they together constitute a single “Class”, the Class C Certificates and the Class C-PEX Component shall be considered as if they together constitute as single “Class,” and the Holders of the Class PEX Certificates shall have the Voting Rights so allocated to the Class PEX Components and no other Voting Rights allocated to a particular Class of Certificateholders shall be allocated among such Certificateholders in proportion to the respective Percentage Interests evidenced by their respective Certificates. No Voting Rights shall be allocated to the Class R or Class V Certificateholders.
“WAC Rate”: With respect to each Interest Accrual Period, is the rate per annum equal to the weighted average, expressed as a percentage and rounded to six decimal places, of the REMIC I Remittance Rates applicable to the respective REMIC I Regular Interests for such Interest Accrual Period, weighted on the basis of the respective Uncertificated Principal Balances of such REMIC I Regular Interests outstanding immediately prior to the related Distribution Date.
“WFB”: Xxxxx Fargo Bank, National Association, or its successor-in-interest.
“WFB Mortgage Loans”: The Mortgage Loans sold to the Depositor by WFB pursuant to the related Mortgage Loan Purchase Agreement.
“WFS”: Xxxxx Fargo Securities, LLC, or its successor-in-interest.
“WHFIT”: A “Widely Held Fixed Investment Trust” as that term is defined in Treasury Regulations Section 1.671-5(b)(22) or successor provisions.
“WHFIT Regulations”: Treasury Regulations Section 1.671-5, as amended.
“WHMT”: A “Widely Held Mortgage Trust” as that term is defined in Treasury Regulations Section 1.671-5(b)(23) or successor provisions.
“Within Grace Period Loan”: With respect to any Monthly Payment or Assumed Monthly Payment due and payable, or deemed due and payable, in respect of any particular Mortgage Loan, the status attributable to that Mortgage Loan by reason of, if applicable, the fact that, although such Monthly Payment or Assumed Monthly Payment has not been received, the Due Date, together with any applicable grace period, for such Monthly Payment or Assumed Monthly Payment has not passed.
“Workout-Delayed Reimbursement Amount”: As defined in Section 3.05(a)(II)(i).
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“Workout Fee”: The fee designated as such in, and payable to the Special Servicer in connection with Corrected Mortgage Loans pursuant to, the second paragraph of Section 3.11(c).
“Workout Fee Projected Amount”: As defined in Section 3.11(c).
“Workout Fee Rate”: With respect to each Corrected Mortgage Loan, 1.00%.
“Yield Maintenance Charge”: With respect to any Mortgage Loan, any premium, fee or other additional amount paid or payable, as the context requires, by a Borrower in connection with a Principal Prepayment on, or other early collection of principal of, a Mortgage Loan, calculated, in whole or in part, pursuant to a yield maintenance formula or otherwise pursuant to a formula that reflects the lost interest, including any specified amount or specified percentage of the amount prepaid which constitutes the minimum amount that such Yield Maintenance Charge may be.
Section 1.02 General Interpretive Principles. For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as well as the singular, and the use of any gender herein shall be deemed to include the other gender;
(ii) accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP as in effect from time to time;
(iii) references herein to “Articles”, “Sections”, “Subsections”, “Paragraphs” and other subdivisions without reference to a document are to designated Articles, Sections, Subsections, Paragraphs and other subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a Section is a reference to such Subsection as contained in the same Section in which the reference appears, and this rule shall also apply to Paragraphs and other subdivisions;
(v) the words “herein”, “hereof”, “hereunder”, “hereto”, “hereby” and other words of similar import refer to this Agreement as a whole and not to any particular provision; and
(vi) the terms “include” and “including” shall mean without limitation by reason of enumeration.
Section 1.03 Certain Calculations in Respect of the Mortgage Pool. (a) All amounts Received by the Trust in respect of any Cross-Collateralized Group, including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of a Serviced Loan Combination, of amounts payable to any related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of any Cross-Collateralized Group shall be applied among the Mortgage Loans constituting such Cross-Collateralized Group
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in accordance with the express provisions of the related Mortgage Loan Documents (including any modifications, waivers or amendments thereto or supplemental agreements entered into in connection with the servicing and administration of such Mortgage Loan) and, in the absence of such express provisions, in accordance with the Servicing Standard. All amounts Received by the Trust in respect of or allocable to any particular Mortgage Loan (but excluding any Non-Trust-Serviced Pooled Mortgage Loan, which shall be allocated in accordance with Section 1.03(c), hereof), including any payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any such collections on or in respect of Corrected Mortgage Loans but exclusive, if applicable, in the case of any Serviced Loan Combination, of amounts payable to any related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement), together with any other cash recoveries on and proceeds of such Mortgage Loan shall be applied to amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) in accordance with the express provisions of the related Mortgage Loan Documents and, in the absence of such express provisions or if and to the extent that such terms authorize the lender to use its discretion, shall be applied:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with, without duplication, any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on such Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period in which the collection occurred, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with, without duplication, any Unliquidated Advances in respect of prior P&I Advances of such principal and any prior P&I Advances of such principal theretofore determined to constitute Nonrecoverable P&I Advances) of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid principal balance);
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
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(v) fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items;
(vi) sixth, unless a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be held in escrow;
(vii) seventh, as a recovery of any Default Charges then due and owing under such Mortgage Loan;
(viii) eighth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan;
(ix) ninth, as a recovery of any assumption fees and modification fees then due and owing under such Mortgage Loan;
(x) tenth, as a recovery of any other amounts then due and owing under such Mortgage Loan, other than remaining unpaid principal or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, other than Post-ARD Additional Interest (if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees);
(xi) eleventh, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and
(xii) twelfth, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage Loan;
provided that, in connection with any Serviced Mortgage Loan (or Serviced Loan Combination), payments or proceeds received from the related Borrower with respect to any partial release (including pursuant to a condemnation) of a Mortgaged Property at a time when the loan-to-value ratio of the related Serviced Mortgage Loan (or Serviced Loan Combination) exceeds 125% (based solely on the value of the real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an opinion of counsel provided to the Trustee) must be applied to reduce the principal balance of such Serviced Mortgage Loan (or Serviced Loan Combination) in the manner permitted by the REMIC Provisions.
(b) Amounts Received by the Trust with respect to each REO Property (other than, if applicable, any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan which shall be allocated in accordance with Section 1.03(c), hereof and other than, if applicable, in the case of any Serviced Loan Combination, amounts payable to any related Serviced Pari Passu Companion Loan Holder pursuant to the related Intercreditor Agreement as set forth in
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Section 1.03(g) hereof), exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of such REO Property, shall be treated:
(i) first, as a recovery of any related and unreimbursed Servicing Advances (together with any Unliquidated Advances in respect of prior Servicing Advances and any prior Servicing Advances theretofore determined to constitute Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation Expenses;
(ii) second, as a recovery of accrued and unpaid interest (together with any Unliquidated Advances in respect of prior P&I Advances of such interest and any P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I Advances) on the related REO Mortgage Loan to, but not including, the end of the mortgage loan interest accrual period ending in the Collection Period of receipt by or on behalf of the Trust, exclusive, however, of any portion of such accrued and unpaid interest that constitutes Default Interest or, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest; provided that in no event shall any portion of any Liquidation Proceeds be applied under this clause second to any interest that previously accrued on a Mortgage Loan and constitutes an Appraisal-Reduced Interest Amount;
(iii) third, as a recovery of principal (together with any Unliquidated Advances in respect of prior P&I Advances of such principal and any P&I Advances of principal theretofore determined to constitute Nonrecoverable P&I Advances) of the related REO Mortgage Loan to the extent of its entire unpaid principal balance;
(iv) fourth, as a recovery of any Appraisal-Reduced Interest Amounts that have occurred and are then existing with respect to such Mortgage Loan;
(v) fifth, as a recovery of any Default Charges deemed to be due and owing in respect of the related REO Mortgage Loan;
(vi) sixth, as a recovery of any Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
(vii) seventh, as a recovery of any other amounts deemed to be due and owing in respect of the related REO Mortgage Loan (other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest (and if both (x) fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation and (y) Trust Advisor Consulting Fees are due and owing, first, allocated to fees that constitute Additional Master Servicing Compensation or Additional Special Servicing Compensation, and then allocated to Trust Advisor Consulting Fees)); and
(viii) eighth, in the case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid Post-ARD Additional Interest on such REO Mortgage Loan.
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(c) The parties hereto acknowledge that any payments, collections and recoveries received by the parties to the Non-Trust Pooling and Servicing Agreement related to a Non-Trust-Serviced Pooled Mortgage Loan are required to be allocated by such parties as interest, principal or other amounts in accordance with the terms and conditions of the related Intercreditor Agreement and the related Non-Trust-Serviced Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto shall be deemed not to constitute principal or any portion thereof and shall not be added to the unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of the related Mortgage Loan Documents so permit. To the extent any Post-ARD Additional Interest is not paid on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any Mortgage Loan or REO Property shall be determined by the Master Servicer and reflected in the appropriate monthly report from the Master Servicer and in the appropriate monthly Distribution Date Statement as provided in Section 4.02.
(f) All net present value calculations and determinations made with respect to a Mortgage Loan (other than a Non-Trust-Serviced Pooled Mortgage Loan), a Serviced Loan Combination, Mortgaged Property or REO Property (other than any Mortgaged Property or REO Property, or any interest therein, related to any Non-Trust-Serviced Pooled Mortgage Loan) (including for purposes of the definition of “Servicing Standard”) shall be made using a discount rate (a) for principal and interest payments on a Mortgage Loan or Serviced Loan Combination, or the sale of a Mortgage Loan or Serviced Loan Combination, equal to the higher of (x) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of such Borrower as of such date of determination and (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Loan Combination based on its outstanding principal balance (or, in connection with a sale of a Mortgage Loan related to a Serviced Loan Combination, the senior note interest rate), and (b) for all other cash flows, including property cash flow, identical to the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property or REO Property.
(g) Amounts collected on or with respect to any Serviced Loan Combination or any related REO Property shall be applied in accordance with the allocation and payment provisions of the applicable Intercreditor Agreement. In no event, however, shall there be charged to or borne by any one or more related Serviced Pari Passu Companion Loan Holders any out-of-pocket expense incurred under this Agreement that, in the good faith, reasonable judgment of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Tax Administrator, as applicable, (i) relates primarily to the general administration of the Trust Fund (and is not attributable to any particular mortgage loans), (ii) relates primarily to a REMIC Pool or the general administration thereof, (iii) relates primarily to any determination respecting the amount, payment or avoidance of any tax on the Trust Fund under the REMIC Provisions, (iv) relates to any unrelated Mortgage Loan, or (v) consists of the actual payment of
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any REMIC tax. Section 1.03 and Section 3.05(a) of this Agreement shall be construed in accordance with the preceding statement.
Section 1.04 Cross-Collateralized Mortgage Loans. Notwithstanding anything herein to the contrary, it is hereby acknowledged that any groups of Mortgage Loans identified on the Mortgage Loan Schedule as being cross-collateralized with each other are, in the case of each such particular group of Mortgage Loans, by their terms, cross-defaulted and cross-collateralized with each other. For purposes of reference only in this Agreement, and without in any way limiting the servicing rights and powers of the Master Servicer and/or the Special Servicer, with respect to any Cross-Collateralized Mortgage Loan (or successor REO Mortgage Loan with respect thereto), the Mortgaged Property (or REO Property) that relates or corresponds thereto shall be the property identified in the Mortgage Loan Schedule as corresponding thereto. The provisions of this Agreement, including each of the defined terms set forth in Section 1.01, shall be interpreted in a manner consistent with this Section 1.04; provided that, if there exists with respect to any Cross-Collateralized Group only one original of any document referred to in the definition of “Mortgage File” covering all the Mortgage Loans in such Cross-Collateralized Group, then the inclusion of the original of such document in the Mortgage File for any of the Mortgage Loans constituting such Cross-Collateralized Group shall be deemed an inclusion of such original in the Mortgage File for each such Mortgage Loan.
Section 1.05 Incorporation of Preliminary Statement. The parties hereto acknowledge that the Preliminary Statement at the beginning of this Agreement constitutes a part of this Agreement.
ARTICLE
II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS,
REMIC II REGULAR INTERESTS, REMIC III COMPONENTS, REMIC I RESIDUAL
INTEREST, REMIC II RESIDUAL INTEREST, REMIC III RESIDUAL INTEREST
AND CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law trust be established under the laws of the State of New York pursuant to this Agreement and, further that such trust be designated as “Xxxxx Fargo Commercial Mortgage Trust 2015-NXS1”. The fiscal year-end of such trust shall be December 31. Wilmington Trust, National Association is hereby appointed, and does hereby agree to act, as Trustee hereunder and, in such capacity, to hold the Trust Fund in trust for the exclusive use and benefit of all present and future Certificateholders. This Agreement is not intended to create a partnership or a joint-stock association between or among any of the parties hereto.
(b) The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee, in trust, without recourse, for the benefit of the Certificateholders (and for the benefit of the other parties to this Agreement as their respective interests may appear) and the Trustee (as holder of the Class A-S Regular
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Interest, Class B Regular Interest and Class C Regular Interest) all the right, title and interest of the Depositor, in, to and under (i) the Original Mortgage Loans and all documents included in the related Mortgage Files and Servicing Files, (ii) the rights of the Depositor under Sections 0, 0, 0 (xxxxx xxxx Xxxxxxx 0(x), (x) and (f)) and 5 (other than Section 5(f), (g), (h) and (i)) and, to the extent related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18 of each Mortgage Loan Purchase Agreement and (iii) all other assets included or to be included in the Trust Fund. Such assignment includes (i) all scheduled payments of principal and interest under and proceeds of the Original Mortgage Loans received after their respective Cut-off Dates (other than scheduled payments of interest and principal due and payable on or before their respective Cut-off Dates, which amounts shall belong and be promptly remitted to the related Mortgage Loan Seller when and if received), together with all documents delivered or caused to be delivered hereunder with respect to the Original Mortgage Loans by the respective Mortgage Loan Sellers (including all documents included in the related Mortgage Files and Servicing Files and any related Additional Collateral); (ii) any REO Property acquired in respect of an Original Mortgage Loan (or, in the case of any REO Property related to a Non-Trust-Serviced Pooled Mortgage Loan, the beneficial interest of the holder of the related Non-Serviced Pari Passu Companion Loan with respect thereto); and (iii) such funds or assets as from time to time are deposited in the Collection Account (but not in the Serviced Pari Passu Companion Loan Custodial Account), the Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Account and, if established, and subject to the rights of any related Serviced Pari Passu Companion Loan Holder(s), the REO Account.
The Depositor’s transfer and conveyance of: (i) any Non-Trust-Serviced Pooled Mortgage Loan is subject to the related Non-Trust Pooling and Servicing Agreement and the related Intercreditor Agreement and (ii) any Mortgage Loan that is part of a Serviced Loan Combination is subject to the related Intercreditor Agreement.
After the Depositor’s transfer of the Original Mortgage Loans to the Trustee pursuant to this Section 2.01(b), the Depositor shall not take any action inconsistent with the Trust’s ownership of the Mortgage Loans.
(c) The conveyance of the Original Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties hereto to constitute an absolute transfer of the Original Mortgage Loans and such other related rights and property by the Depositor to the Trustee for the benefit of the Certificateholders (and the Trustee as holder of the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest). Furthermore, it is not intended that such conveyance be a pledge of security for a loan. If such conveyance is determined to be a pledge of security for a loan, however, the Depositor and the Trustee intend that the rights and obligations of the parties to such loan shall be established pursuant to the terms of this Agreement. The Depositor and the Trustee also intend and agree that, in such event, (i) this Agreement shall constitute a security agreement under applicable law, (ii) the Depositor shall be deemed to have granted and hereby grants to the Trustee (in such capacity) a first priority security interest in all of the Depositor’s right, title and interest in and to the following, whether now owned or existing or hereafter acquired or arising: (1) the Mortgage Loans, (2) all principal and interest received on or with respect to such Mortgage Loans after the Cut-off Date (other than scheduled payments of interest and principal due and payable on such Mortgage Loans on or prior to their respective Cut-off Dates or, in the case of a Replacement
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Mortgage Loan, on or prior to the related date of substitution), (3) all amounts held from time to time in the Collection Account, the Distribution Account, the Interest Reserve Account, the Excess Liquidation Proceeds Account and, if established, the REO Account, and all investment earnings on such amounts, (4) all of the Depositor’s right, title and interest under the Mortgage Loan Purchase Agreements that are described under clause (ii) of the first sentence of Section 2.01(b), (5) all other assets included or to be included in the Trust Fund and (6) all income, payments, products and proceeds of any of the foregoing, together with any additions thereto or substitutions therefor, (iii) the possession by the Custodian on the Trustee’s behalf of the Mortgage Notes with respect to the Mortgage Loans subject hereto from time to time and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by a purchaser or person designated by such secured party for the purpose of perfecting such security interest under applicable law, and (iv) notifications to, and acknowledgments, receipts or confirmations from, Persons holding such property, shall be deemed to be notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor shall file or cause to be filed, as a precautionary filing, a UCC financing statement substantially in the form attached as Exhibit J hereto in all appropriate locations in the State of Delaware promptly following the initial issuance of the Certificates, and the Certificate Administrator shall, at the expense of the Depositor (to the extent reasonable), prepare and file continuation statements with respect thereto, in each case in the six-month period prior to every fifth anniversary of the date of the initial UCC financing statement. The Depositor shall cooperate in a reasonable manner with the Certificate Administrator in the preparation and filing of such continuation statements. This Section 2.01(c) shall constitute notice to the Certificate Administrator pursuant to any requirements of the UCC in effect in each applicable jurisdiction.
(d) In connection with the Depositor’s assignment pursuant to Section 2.01(b) above, the parties acknowledge that each Mortgage Loan Seller is obligated, at such Mortgage Loan Seller’s expense, pursuant to the related Mortgage Loan Purchase Agreement, to deliver to and deposit with, or cause to be delivered to and deposited with, the Custodian, (i) on or before the Closing Date, the Mortgage Note relating to each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of “Mortgage File” (or, alternatively, if the original executed Mortgage Note has been lost, a lost note affidavit and indemnity with a copy of such Mortgage Note as specified in clause (i) of the definition of “Mortgage File”) and (ii) on or before the respective delivery dates therefor set forth in the related Mortgage Loan Purchase Agreement, the remainder of the Mortgage File and any Additional Collateral (other than Reserve Funds and originals of Letters of Credit, all of which are to be transferred to the Master Servicer) for each Original Mortgage Loan acquired by the Depositor from such Mortgage Loan Seller. Notwithstanding the preceding sentence, if the applicable Mortgage Loan Seller cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the original or a copy of any of the documents and/or instruments referred to in clauses (ii), (iii), (vii) and (ix)(A) of the definition of “Mortgage File”, with evidence of recording or filing (if applicable, and as the case may be) thereon, solely because of a delay caused by the public recording or filing office where such document or instrument has been delivered for recordation or filing, as the case may be, then (subject to the obligation of such Mortgage Loan Seller to nonetheless (1) from time to time make or cause to be made reasonably diligent efforts to obtain such document or instrument (with such evidence) if it is not returned within a reasonable period after the date when it was
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transmitted for recording and (2) deliver such document or instrument to the Custodian (if such document or instrument is not otherwise returned to the Custodian) promptly upon such Mortgage Loan Seller’s receipt thereof), so long as a copy of such document or instrument, certified by such Mortgage Loan Seller or title agent as being a copy of the document deposited for recording or filing and (in the case of such clause (ii)) accompanied by an Officer’s Certificate of the applicable Mortgage Loan Seller or a statement from the title agent to the effect that such original Mortgage has been sent to the appropriate public recording official for recordation, has been delivered to the Custodian on or before the respective delivery dates therefor set forth in the related Mortgage Loan Purchase Agreement, the delivery requirements of the related Mortgage Loan Purchase Agreement shall be deemed to have been satisfied as to such missing item, and such missing item shall be deemed to have been included in the related Mortgage File; or if the applicable Mortgage Loan Seller cannot or does not so deliver, or cause to be delivered, as to any Mortgage Loan (exclusive of a Non-Trust-Serviced Pooled Mortgage Loan), the original of any of the documents and/or instruments referred to in clauses (iv) and (ix)(B) of the definition of “Mortgage File”, because such document or instrument has been delivered for recording or filing, as the case may be, then (subject to the obligation of such Mortgage Loan Seller to nonetheless (1) from time to time make or cause to be made reasonably diligent efforts to obtain such document or instrument (with such evidence) if it is not returned within a reasonable period after the date when it was transmitted for recording and (2) deliver such document or instrument to the Custodian (if such document or instrument is not otherwise returned to the Custodian) promptly upon such Mortgage Loan Seller’s receipt thereof), so long as a copy of such document or instrument, certified by such Mortgage Loan Seller, a title agent or a recording or filing agent as being a copy of the document deposited for recording or filing and accompanied by an Officer’s Certificate of such Mortgage Loan Seller or a statement from the title agent that such document or instrument has been sent to the appropriate public recording official for recordation (except that such copy and certification shall not be required if the Custodian is responsible for recordation of such document or instrument under this Agreement and such Mortgage Loan Seller has delivered the original unrecorded document or instrument to the Custodian on or before the date that is forty-five (45) days following the Closing Date), has been delivered to the Custodian on or before the respective delivery dates therefor set forth in the related Mortgage Loan Purchase Agreement, the delivery requirements of the related Mortgage Loan Purchase Agreement shall be deemed to have been satisfied as to such missing item, and such missing item shall be deemed to have been included in the related Mortgage File. In addition, with respect to each Mortgage Loan (exclusive of a Non-Trust-Serviced Pooled Mortgage Loan) under which any Additional Collateral is in the form of a Letter of Credit as of the Closing Date, the parties acknowledge that the related Mortgage Loan Seller is contractually obligated to cause to be prepared, executed and delivered to the issuer of each such Letter of Credit such notices, assignments and acknowledgments as are required under such Letter of Credit to assign, without recourse, to the Trustee the related Mortgage Loan Seller’s rights as the beneficiary thereof and drawing party thereunder. Furthermore, with respect to each Mortgage Loan (exclusive of a Non-Trust-Serviced Pooled Mortgage Loan), if any, as to which there exists a secured creditor impaired property insurance policy or pollution limited liability environmental impairment policy covering the related Mortgaged Property, the related Mortgage Loan Seller is contractually obligated to cause such policy, within a reasonable period following the Closing Date, to inure to the benefit of the Trustee on behalf of the Certificateholders (if and to the extent that it does not by its terms automatically inure to the holder of such Mortgage Loan). The
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Depositor shall deliver to the Trustee and the Custodian on or before the Closing Date a fully executed counterpart of each Mortgage Loan Purchase Agreement. With respect to a Non-Trust-Serviced Pooled Mortgage Loan, the parties hereto acknowledge the provisions of the related Mortgage Loan Purchase Agreement in which the related Mortgage Loan Seller represents, warrants and covenants to the effect that the documents described in clauses (ii), (iii) and (xi) of the definition of “Mortgage File” and documents comparable to those described in clauses (iv), (vi) and (ix)(B) of the definition of “Mortgage File” have been delivered to the trustee or custodian under the related Non-Trust Pooling and Servicing Agreement, except to the extent that the absence of such document does not constitute a breach pursuant to the terms of the related Non-Trust Pooling and Servicing Agreement. In addition, with respect to a Non-Trust-Serviced Pooled Mortgage Loan, the parties hereto acknowledge the provisions of the related Mortgage Loan Purchase Agreement in which the related Mortgage Loan Seller agrees that any “Document Defect” as such term is defined in the applicable Non-Trust Pooling and Servicing Agreement shall constitute a Document Defect under the related Mortgage Loan Purchase Agreement; provided that the foregoing shall not apply if any such “Document Defect” relates solely to the promissory note for any related Non-Serviced Pari Passu Companion Loan. None of the Depositor, the Trustee, the Certificate Administrator, the Custodian, the Trust Advisor, the Master Servicer or the Special Servicer shall be liable for any failure by any Mortgage Loan Seller to comply with the document delivery requirements of the related Mortgage Loan Purchase Agreement.
(e) The parties hereto acknowledge that, except in the case of a Non-Trust-Serviced Pooled Mortgage Loan, each Mortgage Loan Purchase Agreement requires the related Mortgage Loan Seller, or its designee, to itself submit, or cause to be submitted, (i) each assignment of Mortgage and assignment of Assignment of Leases in favor of the Trustee referred to in clause (iv) of the definition of “Mortgage File” and (ii) each assignment of UCC Financing Statement in favor of the Trustee referred to in clause (ix)(B) of the definition of “Mortgage File”, for recording or filing to the extent that they are related to Mortgage Loans for which it is the applicable Mortgage Loan Seller. Each such assignment shall reflect that it should be returned by the public recording office to the applicable Mortgage Loan Seller or its designee, and such Mortgage Loan Seller has agreed in the related Mortgage Loan Purchase Agreement to deliver or cause the delivery of each such assignment to the Custodian (with a copy thereof to the Master Servicer)) following recording, and each such assignment of UCC Financing Statement shall reflect that the file copy thereof or an appropriate receipt therefor, as applicable, should be returned to the applicable Mortgage Loan Seller or its designee, and such Mortgage Loan Seller has agreed in the related Mortgage Loan Purchase Agreement to deliver or cause the delivery of each such assignment to the Custodian (with a copy thereof to the Master Servicer) following filing; provided that in those instances where the public recording office retains the original assignment of Mortgage or assignment of Assignment of Leases, the applicable Mortgage Loan Seller has agreed to obtain therefrom a copy of the recorded original and is required to provide a copy of such recorded original to the Custodian (with a copy to the Master Servicer). The parties hereto further acknowledge that, except in the case of a Non-Trust-Serviced Pooled Mortgage Loan, each Mortgage Loan Purchase Agreement requires the related Mortgage Loan Seller, if any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, to prepare or cause to be prepared promptly a substitute therefor or cure such defect, as the case may be, and thereafter cause the same to be duly recorded or filed, as appropriate.
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(f) In connection with the Depositor’s assignment pursuant to Section 2.01(b) above, the parties acknowledge that each Mortgage Loan Seller is contractually obligated, at such Mortgage Loan Seller’s expense, pursuant to the related Mortgage Loan Purchase Agreement, to deliver to and deposit with, or cause to be delivered to and deposited with, the Master Servicer, on or before the Closing Date: (i) a copy of the Mortgage File for each Original Mortgage Loan (except that copies of instruments of assignment shall be forwarded by the Custodian upon request when the originals are returned to the Custodian in accordance with Section 2.01(e) above); (ii) originals or copies of all financial statements, appraisals, environmental reports, engineering reports, transaction screens, seismic assessment reports, leases, rent rolls, Insurance Policies and certificates, major space leases, legal opinions and tenant estoppels and any other relevant documents relating to the origination and servicing of any Mortgage Loan or Serviced Loan Combination that are reasonably necessary for the ongoing administration and/or servicing of the applicable Mortgage Loan or Serviced Loan Combination in the possession or under the control of such Mortgage Loan Seller that relate to the Original Mortgage Loans transferred by it to the Depositor and, to the extent that any original documents or copies, as applicable, of the following documents are not required to be a part of a Mortgage File for any such Original Mortgage Loan or Serviced Loan Combination, originals or copies of all documents, certificates and opinions in the possession or under the control of such Mortgage Loan Seller that were delivered by or on behalf of the related Borrowers in connection with the origination of such Original Mortgage Loans (provided that such Mortgage Loan Seller shall not be required to deliver any attorney-client privileged communication, draft documents or any documents or materials prepared by it or its Affiliates for internal uses, including without limitation, credit committee briefs or memoranda and other internal approval documents); and (iii) all unapplied Reserve Funds and Escrow Payments in the possession or under the control of such Mortgage Loan Seller that relate to the Original Mortgage Loans transferred by such Mortgage Loan Seller to the Depositor. The Master Servicer (or a Sub-Servicer on its behalf) shall hold all such documents, records and funds that it so receives on behalf of the Trust for the benefit of the Certificateholders (and the Trustee as holder of the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest) and, insofar as they also relate to any Serviced Pari Passu Companion Loan, on behalf of and for the benefit of any and all related Serviced Pari Passu Companion Loan Holder(s).
(g) With respect to the Mortgage Loans identified as Loan Nos. 8, 32 and 42 on the Mortgage Loan Schedule, which are each subject to a franchise agreement with a related comfort letter in favor of the respective Mortgage Loan Seller, the related Mortgage Loan Seller or its agent will be required to, within 60 days of the Closing Date (or any shorter period if required by the applicable comfort letter), notify the related franchisor that each such Mortgage Loan has been transferred to the Trust and, unless only notice to the related franchisor is required, request a replacement comfort letter (or any such new document or acknowledgement as may be contemplated under the existing comfort letter), and deliver to the Master Servicer a copy of each such notice and request and the existing comfort letters, and the Master Servicer shall use reasonable efforts in accordance with the Servicing Standard to acquire such replacement comfort letter, if necessary (or to acquire any such new document or acknowledgement as may be contemplated under the existing comfort letter). If the Master Servicer is unable to acquire any such replacement comfort letter (or new document or acknowledgement, as applicable) within 120 days of the Closing Date, the Master Servicer will
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notify the related Mortgage Loan Seller that no such replacement comfort letter has been received.
(h) Reserved.
Section 2.02 Acceptance of Mortgage Loans by Trustee. (a) Subject to the other provisions in this Section 2.02, the Trustee, by its execution and delivery of this Agreement, hereby accepts receipt on behalf of the Trust, through the Custodian on its behalf, of (i) the Original Mortgage Loans and all documents delivered to the Custodian that constitute portions of the related Mortgage Files and (ii) all other assets delivered to the Custodian and included in the Trust Fund, in good faith and without notice of any adverse claim. The Custodian declares that it holds and will hold such documents and any other documents received by it that constitute portions of the Mortgage Files, and that it holds and will hold the Original Mortgage Loans and such other assets, together with any other Mortgage Loans and assets subsequently delivered to it that are to be included in the Trust Fund, in trust for the exclusive use and benefit of all present and future Certificateholders and the Trustee (as holder of the Class A-S Regular Interest, Class B Regular Interest and Class C Regular Interest). To the extent that the Mortgage File relates to a Mortgage Loan that is part of a Serviced Loan Combination, the Custodian shall also hold such Mortgage File in trust for the use and benefit of the related Serviced Pari Passu Companion Loan Holder(s). The Master Servicer acknowledges receipt of all of the original Letters of Credit relating to the Mortgage Loans or Serviced Loan Combination delivered to it (copies of which are part of the Mortgage File) and agrees to hold such Letters of Credit in trust for the benefit of the Trustee. In connection with the foregoing, the Custodian hereby certifies to each of the other parties hereto, each Mortgage Loan Seller and each Underwriter that, as to each Mortgage Loan, except as specifically identified in the Schedule of Exceptions to Mortgage File Delivery attached hereto as Schedule II, (i) all documents specified in clause (i) of the definition of “Mortgage File” are in its possession, and (ii) the original Mortgage Note (or, if accompanied by a lost note affidavit and indemnity, the copy of such Mortgage Note) received by it with respect to such Mortgage Loan has been reviewed by it and (A) appears regular on its face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to such Mortgage Loan. The Custodian may rely on the purported due execution and genuineness of any such document and on the purported genuineness of any signature thereon.
(b) On or about the 75th day following the Closing Date, the Custodian shall review the documents delivered to it with respect to each Original Mortgage Loan, and the Custodian shall, subject to Sections 1.04, 2.02(c) and 2.02(d), certify in writing (and, if any exceptions are noted or if the recordation/filing contemplated by Section 2.01(e) has not been completed (based solely on receipt by the Custodian of the particular documents showing evidence of the recordation/filing), the Custodian shall deliver updates to any exception list attached to such certification in accordance with the penultimate sentence of this paragraph (which exception list shall also be delivered in Excel-compatible format)) to each of the other parties hereto (substantially in the form of Exhibit M), the Mortgage Loan Sellers, any Serviced Pari Passu Companion Loan Holders (in each case, provided that the Custodian has received notice of the identity of and notice address information for such Serviced Pari Passu Companion Loan Holder), the Majority Subordinate Certificateholder and the Subordinate Class
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Representative that, as to each Original Mortgage Loan then subject to this Agreement (except as specifically identified in any exception report annexed to such certification): (i) the original Mortgage Note specified in clause (i) of the definition of “Mortgage File” and all allonges thereto, if any (or a copy of such Mortgage Note, together with a lost note affidavit and indemnity) and, except with respect to a Non-Trust-Serviced Pooled Mortgage Loan, the original or copy of documents specified in clauses (ii), (iii), (iv), (viii) (without regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment), (x) (if the Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) and (xx) (if the Mortgage Loan Schedule specifies that the Mortgaged Property type is a hospitality property) of the definition of “Mortgage File” have been received by it; (ii) if such report is due more than 180 days after the Closing Date, the recordation/filing contemplated by Section 2.01(e) has been completed (based solely on receipt by the Custodian of the particular recorded/filed documents or an appropriate receipt of recording/filing therefor); (iii) all documents received by it with respect to such Mortgage Loan have been reviewed by it 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 such Mortgage Loan; and (iv) based on the examinations referred to in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing documents, the information set forth in the Mortgage Loan Schedule with respect to the items specified in clause (iv)(A) and clause (vi) of the definition of “Mortgage Loan Schedule” accurately reflects the information set forth in the related Mortgage File. Every ninety (90) days after such 75th day following the Closing Date, until the earlier of (i) the date on which such exceptions are eliminated and such recordation/filing has been completed, and (ii) the date on which all the affected Mortgage Loans are removed from the Trust Fund, the Custodian shall deliver electronically (including in Excel-compatible format) to each of the other parties hereto, to the Mortgage Loan Sellers, any Serviced Pari Passu Companion Loan Holders, the Majority Subordinate Certificateholder and the Subordinate Class Representative an update to the exception report annexed to the certification described above substantially in the form of Exhibit M, which update shall report any remaining outstanding exceptions with respect to each Original Mortgage Loan. Such delivery shall be deemed to constitute a certification of the substance of the matters set forth in the form of such Exhibit M (except as set forth in such exception report). The Master Servicer shall provide the contact name, mailing address and e-mail address of any Serviced Pari Passu Companion Loan Holder to the Special Servicer, the Trustee, the Custodian and the Certificate Administrator to the extent not previously provided thereto, provided that the Master Servicer has such information. The contact name, mailing address and e-mail address of each initial Serviced Pari Passu Companion Loan Holder is set forth on Schedule IX hereto.
(c) If a Responsible Repurchase Party substitutes a Replacement Mortgage Loan for any Defective Mortgage Loan as contemplated by Section 2.03, the Custodian shall review the documents delivered to it with respect to such Replacement Mortgage Loan, and the Custodian shall deliver a certification comparable to that described in the prior paragraph, in respect of such Replacement Mortgage Loan, on or about the 30th day following the related date of substitution (and, if any exceptions are noted, every ninety (90) days thereafter until the earlier of (i) the date on which such exceptions are eliminated and all related recording/filing has been completed, and (ii) the date on which such Replacement Mortgage Loan is removed from the Trust Fund).
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With respect to the documents described in clause (iii) of the definition of “Mortgage File”, absent actual knowledge to the contrary, the Custodian may assume, for purposes of the certification(s) delivered in this Section 2.02(c) or to be delivered pursuant to Section 2.02(b), that the Mortgage File for each Mortgage Loan includes a separate Assignment of Leases.
With respect to the documents described in clause (ix) of the definition of “Mortgage File”, absent actual knowledge to the contrary or copies of UCC Financing Statements delivered to the Custodian as part of the Mortgage File indicating otherwise, the Custodian may assume, for purposes of the certification(s) to be delivered pursuant to this Section 2.02(c), that the Mortgage File for each Mortgage Loan should include a copy of one state-level UCC Financing Statement filed in the state of incorporation or organization of the related Borrower for each Mortgaged Property (or with respect to any Mortgage Loan that has two or more Borrowers, for each related Borrower). To the extent appropriate under applicable law, the UCC Financing Statements to be assigned to the Trustee will be delivered on the new national forms and in recordable form and will be filed in the state of incorporation or organization as so indicated on the documents provided.
(d) None of the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, any Sub-Servicer, the Special Servicer, the Custodian or the Trust Advisor is under any duty or obligation to (i) determine whether any of the documents specified in clauses (iii), (iv)(B), (v), (vi), (vii), (ix) and (xi) through (xviii) of the definition of “Mortgage File” exist or are required to be delivered by the Mortgage Loan Sellers in respect of any Mortgage Loan unless such item(s) are specified on the related Mortgage File Checklist, or (ii) inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loans delivered to it to determine that the same are valid, legal, effective, genuine, binding, enforceable, sufficient or appropriate for the represented purpose or that they are other than what they purport to be on their face. Furthermore, except as expressly provided in Section 2.01(e), none of the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, any Sub-Servicer, the Special Servicer, the Custodian or the Trust Advisor shall have any responsibility for determining whether the text of any assignment or endorsement is in proper or recordable form, whether the requisite recording of any document is in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction.
(e) In performing the reviews contemplated by subsections (a) and (b) above, the Custodian may conclusively rely on the related Mortgage Loan Seller as to the purported genuineness of any such document and any signature thereon. It is understood that the scope of the Custodian’s review of the Mortgage Files is limited solely to confirming that the documents specified in clauses (i), (ii), (iii), (iv) (except with respect to a Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the verification of the effective date with respect to a title policy or the date of funding with respect to a title commitment), (x) (if the Mortgage Loan Schedule specifies that a material portion of the interest of the Borrower in the related Mortgaged Property consists of a leasehold interest) and (xx) (if the Mortgage Loan Schedule specifies that the Mortgaged Property type is a hospitality property) of the definition of “Mortgage File” have been received by it and such additional information as will be necessary for delivering the certifications required by subsections (a) and (b) above.
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Section 2.03 Certain Repurchases and Substitutions of Mortgage Loans by the Responsible Repurchase Parties.
(a) If, in the process of reviewing the documents delivered or caused to be delivered by the Mortgage Loan Sellers as contemplated by Section 2.01(d), the Custodian discovers that any document required to have been delivered as contemplated by Section 2.01(d) has not been so delivered, or discovers that any of the documents that were delivered has not been properly executed, contains information that does not conform in any material respect with the corresponding information set forth in the Mortgage Loan Schedule, or is defective on its face (each, including, without limitation, that a document is missing, a “Document Defect”), or if, at any other time, the Custodian or any other party hereto discovers (without implying that any such party has a duty to make or attempt to make such discovery) a Document Defect in respect of any Mortgage Loan, the party discovering such Document Defect shall promptly so notify each of the other parties hereto. If any party hereto discovers (without implying that any such party has a duty to make or attempt to make such discovery) or receives notice of a breach of any representation or warranty relating to any Mortgage Loan set forth in or made pursuant to Section 4(b) or 4(g) of any Mortgage Loan Purchase Agreement (a “Breach”), such party shall promptly so notify each of the other parties hereto. Upon the Trustee’s discovery or receipt of notice that a Document Defect or Breach exists with respect to any Mortgage Loan, the Trustee shall notify the Subordinate Class Representative, the Majority Subordinate Certificateholder, the Depositor, the Certificate Administrator, the Custodian, the Master Servicer, the Special Servicer, the related Responsible Repurchase Party and the Rating Agencies.
(b) Promptly upon its actual knowledge of any Material Document Defect or Material Breach with respect to any Mortgage Loan or its receipt of notice from the Trustee or any other party to this Agreement of a Material Document Defect or Material Breach the Master Servicer, if relating to a Performing Serviced Mortgage Loan, or the Special Servicer, if relating to a Specially Serviced Mortgage Loan, shall notify the related Responsible Repurchase Party in writing (in each case, with a copy to the Depositor) of such Material Document Defect or Material Breach, as the case may be, and direct such Responsible Repurchase Party that it must, not later than (1) ninety (90) days from discovery of the subject Material Document Defect or Material Breach by the Responsible Repurchase Party, or (2) ninety (90) days from the receipt by such Responsible Repurchase Party of such notice (or, if (x) such Material Breach or Material Document Defect, as the case may be, relates to whether such Mortgage Loan is or, as of the Closing Date (or, in the case of a Replacement Mortgage Loan, as of the related date of substitution), was a Qualified Mortgage, and (y) such Responsible Repurchase Party discovered or received prompt written notice of the relation specified in clause (x), then (z) within ninety (90) days after any earlier discovery by the Responsible Repurchase Party or any party to this Agreement of such Material Breach or Material Document Defect, as the case may be) (such 90-day period, in any case, the “Initial Resolution Period”), correct or cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Mortgage Loan (as, if and to the extent required by the related Mortgage Loan Purchase Agreement), at the applicable Purchase Price; provided that if such Responsible Repurchase Party certifies to the Trustee in writing (i) that such Material Document Defect or Material Breach, as the case may be, does not relate to whether the affected Mortgage Loan is or, as of the Closing Date (or, in the case of a Replacement Mortgage Loan, as of the related date of substitution), was a Qualified Mortgage, (ii) that such Material Document Defect or Material
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Breach, as the case may be, is capable of being cured but not within the applicable Initial Resolution Period, (iii) that such Responsible Repurchase Party has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, during the applicable Initial Resolution Period, (iv) in the case of a Material Document Defect, that (x) the related Mortgage Loan is not, at the end of the Initial Resolution Period, then a Specially Serviced Mortgage Loan and a Servicing Transfer Event has not occurred as a result of a monetary default or as described in clause (e), (f) or (g) of the definition of “Specially Serviced Mortgage Loan” in this Agreement and (y) the Material Document Defect was not identified in a certification delivered to the Mortgage Loan Seller by the Custodian pursuant to Section 2.02 not less than ninety (90) days prior to the delivery of the notice of such Material Document Defect, and (v) that such Responsible Repurchase Party anticipates that such Material Document Defect or Material Breach, as the case may be, will be cured within an additional 90-day period (such additional 90-day period, the “Resolution Extension Period”) (a copy of which certification shall be delivered by the Trustee to the Depositor, the Master Servicer, the Special Servicer, the Subordinate Class Representative, the Majority Subordinate Certificateholder and the Rating Agencies), then such Responsible Repurchase Party shall have an additional period equal to the Resolution Extension Period to complete such correction or cure (or, upon failure to complete such correction or cure, for the applicable Responsible Repurchase Party to repurchase the affected Mortgage Loan); and provided, further, however, that, in lieu of repurchasing the affected Mortgage Loan as contemplated above (but, in any event, no later than such repurchase would have to have been completed), the applicable Responsible Repurchase Party shall be permitted, during the three-month period commencing on the Startup Day for the REMIC Pool that holds the affected Mortgage Loan (or during the two-year period commencing on such Startup Day if the affected Mortgage Loan is a “defective obligation” within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), to replace the affected Mortgage Loan with one or more Qualifying Substitute Mortgage Loans and to pay a cash amount equal to the applicable Substitution Shortfall Amount, subject to any other applicable terms and conditions of the related Mortgage Loan Purchase Agreement and this Agreement. The parties hereto agree that delivery by the Custodian of a certification or schedule of exceptions to a Mortgage Loan Seller or Responsible Repurchase Party shall not in and of itself constitute delivery of notice of any Material Document Defect or knowledge of such Mortgage Loan Seller or Responsible Repurchase Party of any Material Document Defect. If any Mortgage Loan is to be repurchased or replaced as contemplated by this Section 2.03, the Master Servicer shall designate the Collection Account as the account to which funds in the amount of the applicable Purchase Price or Substitution Shortfall Amount (as the case may be) are to be wired, and the Master Servicer shall promptly notify the Trustee and the Certificate Administrator when such deposit is made. Any such repurchase or replacement of a Mortgage Loan shall be on a whole loan, servicing released basis. Notwithstanding this Section 2.03(b), the absence from the Mortgage File, (i) on the Closing Date of the Mortgage Note (or a lost note affidavit and indemnity with a copy of the Mortgage Note) and (ii) by the first anniversary of the Closing Date, of originals or copies of any other Specially Designated Mortgage Loan Document (without the presence of any factor that reasonably mitigates such absence, nonconformity or irregularity) shall (if the absence results from the related Mortgage Loan Seller’s failure to deliver such Specially Designated Mortgage Loan Document in accordance with the terms of the related Mortgage Loan Purchase Agreement) be conclusively presumed to be a Material Document Defect and shall obligate the party discovering such absence to give the Trustee
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prompt notice, whereupon the Trustee shall notify the applicable Responsible Repurchase Party (with a copy to the Depositor) to cure such Material Document Defect, or, failing that, repurchase or replace the related Mortgage Loan or REO Mortgage Loan, all in accordance with the procedures set forth, and to the extent permitted, herein and in the related Mortgage Loan Purchase Agreement. Notwithstanding this Section 2.03(b), in the event of any Breach described in the second paragraph of Section 5(d) of any Mortgage Loan Purchase Agreement, the remedy described in such second paragraph of such Section 5(d) shall constitute the sole remedy available to the Trustee and any other affected Person with respect to such Breach. For the avoidance of doubt, none of the Trustee, the Certificate Administrator or the Custodian shall have any obligation to review or approve any condition or requirement contemplated hereunder in connection with any repurchase, removal, addition, or substitution.
The remedies provided for in this Section 2.03(b) with respect to any Material Document Defect or Material Breach with respect to any Mortgage Loan shall apply to the related REO Property.
If (x) a Defective Mortgage Loan is to be repurchased or replaced as described above, (y) such Defective Mortgage Loan is part of a Cross-Collateralized Group and (z) the applicable Document Defect or Breach does not constitute a Material Document Defect or Material Breach, as the case may be, as to the other Mortgage Loan(s) that are a part of such Cross-Collateralized Group (the “Other Crossed Loans”) (without regard to this paragraph), then the applicable Document Defect or Breach (as the case may be) shall be deemed to constitute a Material Document Defect or Material Breach (as the case may be) as to each such Other Crossed Loan for purposes of the above provisions, and the related Responsible Repurchase Party shall be obligated to repurchase or replace each such Other Crossed Loan in accordance with the provisions above unless, in the case of such Breach or Document Defect:
(A) the related Responsible Repurchase Party (at its expense) delivers or causes to be delivered to the Trustee, the Master Servicer and the Special Servicer an Opinion of Counsel to the effect that such Responsible Repurchase Party’s repurchase of only those Mortgage Loans as to which a Material Document Defect or Material Breach has actually occurred without regard to the provisions of this paragraph (the “Affected Loan(s)”) and the operation of the remaining provisions of this Section 2.03(b) will not result in an Adverse REMIC Event or any Adverse Grantor Trust Event hereunder; and
(B) each of the following conditions would be satisfied if the related Responsible Repurchase Party were to repurchase or replace only the Affected Loans and not the Other Crossed Loans:
(I) the debt service coverage ratio for such Other Crossed Loan(s) (excluding the Affected Loan(s)) for the four calendar quarters immediately preceding the repurchase or replacement is not less than the least of (A) 0.10x below the debt service coverage ratio for the Cross-Collateralized Group (including the Affected Loan(s)) set forth in Annex A-1 to the Prospectus Supplement, (B) the debt service coverage ratio for the Cross-Collateralized Group (including the Affected Loan(s)) for the
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four preceding calendar quarters preceding the repurchase or replacement and (C) 1.25x;
(II) the loan-to-value ratio for the Other Crossed Loans is not greater than the greatest of (A) the loan-to-value ratio, expressed as a whole number percentage (taken to one decimal place), for the Cross-Collateralized Group (including the Affected Loan(s)) set forth in Annex A-1 to the Prospectus Supplement plus 10%, (B) the loan-to-value ratio, expressed as a whole number percentage (taken to one decimal place), for the Cross-Collateralized Group (including the Affected Loan(s)) at the time of repurchase or replacement and (C) 75%; and
(III) the exercise of remedies against the Primary Collateral of any Mortgage Loan in the Cross-Collateralized Group shall not impair the ability to exercise remedies against the Primary Collateral of the other Mortgage Loans in the Cross-Collateralized Group.
The determination of the Master Servicer or the Special Servicer, as applicable, as to whether the conditions set forth above have been satisfied shall be conclusive and binding in the absence of manifest error. The Master Servicer or the Special Servicer, as applicable, will be entitled to cause to be delivered, or direct the related Responsible Repurchase Party to cause to be delivered, to the Master Servicer or the Special Servicer, as applicable, an Appraisal of any or all of the related Mortgaged Properties for purposes of determining whether the condition set forth in clause (II) above has been satisfied, in each case at the expense of the related Responsible Repurchase Party if the scope and cost of the Appraisal is approved by the related Responsible Repurchase Party and the Subordinate Class Representative (such approval not to be unreasonably withheld in each case).
With respect to any Defective Mortgage Loan that forms a part of a Cross-Collateralized Group and as to which the conditions described in the preceding paragraph are satisfied, such that the Trust Fund will continue to hold the Other Crossed Loans, the related Responsible Repurchase Party and the Trustee, as successor to the Depositor, are bound by an agreement (set forth in the related Mortgage Loan Purchase Agreement) to forbear from enforcing any remedies against the other’s Primary Collateral but each is permitted to exercise remedies against the Primary Collateral securing its respective Mortgage Loans, including with respect to the Trustee, the Primary Collateral securing the Affected Loan(s) still held by the Trustee. If the exercise of remedies by one such party would impair the ability of the other such party to exercise its remedies with respect to the Primary Collateral securing the Affected Loan or the Other Crossed Loans, as the case may be, held by the other such party, then both parties have agreed to forbear from exercising such remedies unless and until the Mortgage Loan Documents evidencing and securing the relevant Mortgage Loans can be modified in a manner that complies with the applicable Mortgage Loan Purchase Agreement to remove the threat of impairment as a result of the exercise of remedies. Any reserve or other cash collateral or Letters of Credit securing any of the Mortgage Loans that form a Cross-Collateralized Group shall be allocated between such Mortgage Loans in accordance with the Mortgage Loan Documents, or otherwise on a pro rata basis based upon their outstanding Stated Principal Balances. All other terms of the Mortgage Loans shall remain in full force and effect, without any modification
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thereof. The provisions of this paragraph shall be binding on all future holders of each Mortgage Loan that forms part of a Cross-Collateralized Group.
To the extent necessary and appropriate, the Trustee shall execute (or, subject to Section 3.01(b) and Section 3.10, provide the Master Servicer or the Special Servicer, as applicable, with a limited power of attorney that enables the Master Servicer or the Special Servicer, as applicable, to execute) the modification of the Mortgage Loan Documents that complies with the applicable Mortgage Loan Purchase Agreement to remove the threat of impairment of the ability of the Responsible Repurchase Party or the Trust Fund to exercise its remedies with respect to the Primary Collateral securing the Mortgage Loan(s) held by such party resulting from the exercise of remedies by the other such party; provided that the Trustee shall not be responsible or liable for any negligence with respect to, or any willful misuse of, any such power of attorney by the Master Servicer or the Special Servicer, as applicable. The Master Servicer shall advance all costs and expenses incurred by the Trustee and the Master Servicer with respect to any Cross-Collateralized Group pursuant to this paragraph, and such advances and interest thereon shall (i) constitute and be reimbursable as Servicing Advances and (ii) be included in the calculation of Purchase Price for the Mortgage Loan(s) to be repurchased or replaced. Neither the Master Servicer nor the Special Servicer, as applicable, shall be liable to any Certificateholder or any other party hereto if a modification of the Mortgage Loan Documents described above cannot be effected for any reason beyond the control of the Master Servicer or the Special Servicer, respectively.
The reasonable “out-of-pocket” costs and expenses incurred by the Master Servicer, the Special Servicer, the Trustee and/or the Custodian pursuant to this Section 2.03(b), including reasonable attorney fees and expenses, shall constitute Servicing Advances to the extent not collected from the related Responsible Repurchase Party.
(c) Whenever one or more Replacement Mortgage Loans are substituted for a Defective Mortgage Loan by a Mortgage Loan Seller as contemplated by this Section 2.03, the Master Servicer or the Special Servicer, as applicable, shall direct the party effecting the substitution to deliver to the Custodian the related Mortgage File and a certification to the effect that such Replacement Mortgage Loan satisfies or such Replacement Mortgage Loans satisfy, as the case may be, all of the requirements of the definition of “Qualifying Substitute Mortgage Loan”. No mortgage loan may be substituted for a Defective Mortgage Loan as contemplated by this Section 2.03 if the Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which case, absent a cure of the relevant Material Breach or Material Document Defect, the affected Mortgage Loan will be required to be repurchased as contemplated hereby. Monthly Payments due with respect to each Replacement Mortgage Loan (if any) after the related date of substitution, and Monthly Payments due with respect to each corresponding Deleted Mortgage Loan (if any) after its respective Cut-off Date and on or prior to the related date of substitution, shall be part of the Trust Fund. Monthly Payments due with respect to each Replacement Mortgage Loan (if any) on or prior to the related date of substitution, and Monthly Payments due with respect to each corresponding Deleted Mortgage Loan (if any) after the related date of substitution, shall not be part of the Trust Fund and are to be remitted by the Master Servicer to the party effecting the related substitution promptly following receipt.
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If any Mortgage Loan is to be repurchased or replaced by a Responsible Repurchase Party as contemplated by this Section 2.03, the Master Servicer or the Special Servicer, as applicable, shall direct such party to amend the Mortgage Loan Schedule to reflect the removal of any Deleted Mortgage Loan and, if applicable, the substitution of the related Replacement Mortgage Loan(s); and, upon its receipt of such amended Mortgage Loan Schedule, the Master Servicer or the Special Servicer, as applicable, shall deliver or cause the delivery of such amended Mortgage Loan Schedule to the other parties hereto. Upon any substitution of one or more Replacement Mortgage Loans for a Deleted Mortgage Loan, such Replacement Mortgage Loan(s) shall become part of the Trust Fund and be subject to the terms of this Agreement in all respects.
The reasonable “out-of-pocket” costs and expenses incurred by the Master Servicer, the Special Servicer, the Trustee and/or the Custodian pursuant to this Section 2.03(c), including reasonable attorney fees and expenses, shall constitute Servicing Advances to the extent not collected from the related Responsible Repurchase Party.
(d) Upon receipt of an Officer’s Certificate from the Master Servicer to the effect that the full amount of the Purchase Price or Substitution Shortfall Amount (as the case may be) for any Mortgage Loan repurchased or replaced by the related Responsible Repurchase Party as contemplated by this Section 2.03 has been deposited in the Collection Account, and further, if applicable, upon receipt of the Mortgage File for each Replacement Mortgage Loan (if any) to be substituted for a Deleted Mortgage Loan, together with any certifications and/or opinions required pursuant to Section 2.03(b) to be delivered by the applicable Responsible Repurchase Party, the Trustee and the Custodian shall each (i) release the Mortgage File and any Additional Collateral held by it or on its behalf for the Deleted Mortgage Loan to the related Responsible Repurchase Party or its designee and (ii) execute and deliver such instruments of release, transfer and/or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the applicable Responsible Repurchase Party or its designee the ownership of the Deleted Mortgage Loan, and the Master Servicer or the Special Servicer, as applicable, shall notify the Depositor and the affected Borrowers of the transfers of the Deleted Mortgage Loan(s) and any Replacement Mortgage Loan(s). In connection with any such repurchase or substitution by the related Responsible Repurchase Party, each of the Master Servicer and the Special Servicer shall deliver to the applicable Responsible Repurchase Party or its designee any portion of the related Servicing File, together with any Escrow Payments, Reserve Funds and Additional Collateral, held by or on behalf of the Master Servicer or the Special Servicer, as the case may be, with respect to the Deleted Mortgage Loan, in each case at the expense of such Responsible Repurchase Party. The reasonable “out-of-pocket” costs and expenses, including reasonable attorneys’ fees and expenses, incurred by the Master Servicer, the Special Servicer, the Trustee and/or the Custodian pursuant to this Section 2.03(d), to the extent not collected from the related Responsible Repurchase Party, shall be reimbursable to each of them as Servicing Advances in respect of the affected Mortgage Loan.
(e) The related Mortgage Loan Purchase Agreement provides the sole remedies available to the Certificateholders, or the Trustee on their behalf, respecting any Document Defect or Breach with respect to any Mortgage Loan. If, in connection with any Material Document Defect or Material Breach, the related Responsible Repurchase Party defaults on its obligations to cure such Material Document Defect or Material Breach and fails to
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deliver a Loss of Value Payment as provided in Section 2.03(h), as the case may be, in all material respects or to repurchase or replace the affected Mortgage Loan as contemplated by this Section 2.03, then the Master Servicer, if relating to a Performing Serviced Mortgage Loan, or the Special Servicer, if relating to a Specially Serviced Mortgage Loan, shall promptly notify the Trustee, the Depositor, the Certificate Administrator, the Subordinate Class Representative and the Majority Subordinate Certificateholder, and the Certificate Administrator shall notify the Certificateholders. Thereafter, the Trustee shall (and the Special Servicer may in its own name, or, as provided in Section 3.01(b) below, in the name of the Trustee) take such actions on behalf of the Trust with respect to the enforcement of such repurchase/substitution obligations, including the institution and prosecution of appropriate legal proceedings, as the Trustee (or, if applicable, the Special Servicer) shall determine are in the best interests of the Certificateholders (taken as a collective whole). Any and all reasonable “out-of-pocket” costs and expenses incurred by the Master Servicer, the Trustee and/or the Special Servicer pursuant to this Section 2.03(e), including, reasonable attorney’s fees and expenses, to the extent not collected from the related Responsible Repurchase Party, shall constitute Servicing Advances in respect of the affected Mortgage Loan.
(f) The Trustee shall not consent to the assignment by a Mortgage Loan Seller or Responsible Repurchase Party of their respective obligations under any Mortgage Loan Purchase Agreement unless such assignment is the subject of a Rating Agency Confirmation and, during any Subordinate Control Period, with the consent of the Subordinate Class Representative, which consent shall be deemed given if the Subordinate Class Representative does not respond within five (5) Business Days of receipt of the Trustee’s request.
(g) If the Depositor, the Master Servicer or the Special Servicer (each a “Repurchase Request Recipient”): (1) receives a Repurchase Communication of a request or demand for repurchase or replacement of any Mortgage Loan alleging a Document Defect or a Breach (a “Repurchase Request”); (2) receives a Repurchase Communication of a withdrawal of a Repurchase Request by the Person making such Repurchase Request (a “Repurchase Request Withdrawal”); or (3) receives a Repurchase Communication that any Mortgage Loan that was subject of a Repurchase Request has been repurchased or replaced (a “Repurchase”) or that such Repurchase Request has been rejected (a “Repurchase Request Rejection”), then such party shall give written notice thereof to the applicable Mortgage Loan Seller and the other parties hereto and the Other Depositor (if applicable) promptly but in any case within ten (10) Business Days from the date of receipt thereof. Each notice required by this Section 2.03(g) (a “Rule 15Ga-1 Notice”) shall include: (i) the date that the Repurchase Communication relating to the Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection, as applicable, was received by the Repurchase Request Recipient; (ii) the identity of the Person making or withdrawing any such Repurchase Communication and the related Mortgage Loan; (iii) in the case of a Repurchase Communication of a Repurchase Request, the basis for the Repurchase Request asserted by the Person making the Repurchase Request, to the extent known to the Repurchase Request Recipient; and (iv) in the case of a Repurchase Communication of a Repurchase Request, a statement from the Repurchase Request Recipient as to whether it currently plans to pursue such Repurchase Request pursuant to Section 2.03(b). Each Rule 15Ga-1 Notice may be delivered by electronic mail in accordance with Section 12.06. A Repurchase Request Recipient shall not be required to provide any information under this Section 2.03(g) if and to the extent that such information is protected by either the attorney-client
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privilege or the attorney work product doctrines. Each Mortgage Loan Purchase Agreement will provide that (i) any Rule 15Ga-1 Notice is provided only to assist the Depositor, the related Mortgage Loan Seller, the Other Depositor (if applicable) and their respective Affiliates in complying with Rule 15Ga-1, Items 1104 and 1121 of Regulation AB and/or any other 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 2.03(g) by a Repurchase Request Recipient, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to the related Mortgage Loan Purchase Agreement.
If the Trustee, the Certificate Administrator or the Custodian receives a Repurchase Communication of a Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection, such party shall forward such Repurchase Communication as soon as possible and in any event, no later than three (3) Business Days following receipt of such Repurchase Communication to the Master Servicer, if relating to a Performing Serviced Mortgage Loan, or to the Special Servicer, if relating to a Specially Serviced Mortgage Loan or REO Property and shall include the following statement in the related correspondence: “This is a Repurchase Communication of a [“Repurchase Request”] [“Repurchase Request Withdrawal”] [“Repurchase”] [“Repurchase Request Rejection”] under Section 2.03 of the Pooling and Servicing Agreement relating to the WFCM 2015-NXS1 Commercial Mortgage Pass-Through Certificates requiring action by you as the “Repurchase Request Recipient” of such Repurchase Communication thereunder”. Upon receipt of any Repurchase Communication of a Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection by the Master Servicer or the Special Servicer, as applicable, pursuant to the prior sentence, such party shall be deemed a Repurchase Request Recipient in respect of such Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection, as applicable, and such party shall comply with the procedures set forth in the prior paragraph of this Section 2.03(g) with respect to such Repurchase Communication of such Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection. In no event shall this provision require the Custodian (in its capacity as Custodian) in connection with its review of a Mortgage File to provide any notice other than as set forth in Section 2.02 of this Agreement. None of the Trustee, the Certificate Administrator or the Custodian shall accept any oral Repurchase Communication of a Repurchase Request, and each of the Trustee, the Certificate Administrator and the Custodian shall direct any Person making an oral Repurchase Communication of a Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection to submit it in writing (or by means of electronic mail in accordance with Section 12.06) to the Certificate Administrator (who will act in accordance with the first sentence of this paragraph). Repurchase Communications of Repurchase Requests made to the Certificate Administrator must be submitted in writing or may be transmitted by electronic mail in accordance with Section 12.06 with a subject line of “Repurchase Request – WFCM 2015-NXS1”.
The parties hereto agree that delivery of a Rule 15Ga-1 Notice shall not in and of itself constitute delivery of notice of any Material Document Defect or Material Breach or knowledge on the part of the Responsible Repurchase Party of any Material Document Defect or Material Breach.
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(h) If a Mortgage Loan Seller (or, if applicable, a related Responsible Repurchase Party), in connection with a Material Document Defect or a Material Breach (or an allegation of a Material Document Defect or a Material Breach) pertaining to a Mortgage Loan, makes a cash payment pursuant to an agreement or a settlement between the applicable Mortgage Loan Seller (or, if applicable, a related Responsible Repurchase Party) and the Special Servicer on behalf of the Trust (with the consent of the Majority Subordinate Certificateholder to the extent a Subordinate Control Period or Collective Consultation Period is then in effect) (each such payment, a “Loss of Value Payment”) with respect to such Mortgage Loan, the amount of such Loss of Value Payment shall be deposited into the Loss of Value Reserve Fund to be applied in accordance with Section 3.05(h)(iii) of this Agreement. If such Loss of Value Payment is made, the Loss of Value Payment shall serve as the sole remedy available to the Certificateholders and the Trustee on their behalf regarding any such Material Breach or Material Document Defect in lieu of any obligation of the Mortgage Loan Seller (or, if applicable, a related Responsible Repurchase Party) to otherwise cure such Material Breach or Material Document Defect or repurchase or substitute for the affected Mortgage Loan based on such Material Breach or Material Document Defect under any circumstances. This paragraph is intended to apply only to a mutual agreement or settlement between the applicable Mortgage Loan Seller (or, if applicable, a related Responsible Repurchase Party) and the Trust, provided that prior to any such agreement or settlement nothing in this paragraph shall preclude the Mortgage Loan Seller (or, if applicable, a related Responsible Repurchase Party) or the Trustee from exercising any of its rights related to a Material Document Defect or a Material Breach in the manner and timing set forth in the related Mortgage Loan Purchase Agreement or this Section 2.03 (excluding this paragraph) (including any right to cure, repurchase or substitute for such Mortgage Loan), and provided, further, that such Loss of Value Payment shall not be greater than the repurchase price of the affected Mortgage Loan; and provided, further that a Material Document Defect or a Material Breach as a result of a Mortgage Loan not constituting a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code may not be cured by a Loss of Value Payment.
Section 2.04 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the other parties hereto and for the benefit of the Certificateholders, as of the Closing Date, that solely as to itself:
(i) The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of North Carolina.
(ii) The Depositor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate the Depositor’s organizational documents 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 agreement or other material instrument to which it is a party or by which it is bound, which default or breach, in the good faith and reasonable judgment of the Depositor, is likely to affect materially and adversely the ability of the Depositor to perform its obligations under this Agreement.
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(iii) The Depositor has the full corporate power and authority to consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement. This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Depositor, enforceable against the Depositor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium and other laws affecting the enforcement of creditors’ rights generally and, to the extent applicable, the rights of creditors of national banks or of “financial companies” (as defined in Section 201 of the Xxxx-Xxxxx Act) or their Affiliates, (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law and (C) public policy considerations regarding the enforceability of provisions providing or purporting to provide indemnification or contribution with respect to violations of securities laws.
(iv) No litigation is pending or, to the best of the Depositor’s knowledge, threatened against the Depositor that, if determined adversely to the Depositor, would prohibit the Depositor from entering into this Agreement or that, in the Depositor’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Depositor to perform its obligations under this Agreement.
(v) Immediately prior to the transfer of the Original Mortgage Loans to the Trustee for the benefit of the Certificateholders pursuant to this Agreement, the Depositor had such right, title and interest in and to each Original Mortgage Loan as was transferred to it by the related Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement. The Depositor has not transferred any of its right, title and interest in and to the Original Mortgage Loans to any Person other than the Trustee.
(vi) The Depositor is transferring all of its right, title and interest in and to the Original Mortgage Loans to the Trustee for the benefit of the Certificateholders free and clear of any and all liens, pledges, charges, security interests and other encumbrances created by or through the Depositor.
(vii) Except for any actions that are the express responsibility of another party hereunder or under any Mortgage Loan Purchase Agreement, and further except for actions that the Depositor is expressly permitted to complete subsequent to the Closing Date, the Depositor has taken all actions required under applicable law to effectuate the transfer of all of its right, title and interest in and to the Original Mortgage Loans by the Depositor to the Trustee.
(viii) No consent, approval, license, authorization or order of any state or federal court or governmental agency or body is required for the consummation by the Depositor of the transactions contemplated herein, except for (A) those consents, approvals, licenses, authorizations or orders that previously have been obtained or where the lack of such consent, approval, license, authorization or order would not have a material adverse effect on the ability of the Depositor to perform its obligations under this Agreement and
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(B) those filings and recordings of the Depositor and assignments thereof that are contemplated by this Agreement to be completed after the Closing Date.
(b) The representations and warranties of the Depositor set forth in Section 2.04(a) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust remains in existence. Upon discovery by any party hereto of any breach of any of such representations and warranties that materially and adversely affects the interests of the Certificateholders or any party hereto, the party discovering such breach shall give prompt written notice thereof to the other parties hereto.
Section 2.05 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to each of the other parties hereto and for the benefit of the Certificateholders, as of the Closing Date, that:
(i) The Master Servicer is a national banking association duly organized, validly existing and in good standing under the laws of the United States, and the Master Servicer is in compliance with the laws of each State in which any related Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement, except where the failure to so qualify or comply would not materially adversely affect the Master Servicer’s ability to perform its obligations hereunder in accordance with the terms of this Agreement.
(ii) The Master Servicer’s execution and delivery of, performance under and compliance with this Agreement, will not violate the Master Servicer’s organizational documents 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 agreement or other material instrument to which it is a party or by which it is bound, which default or breach, in the good faith and reasonable judgment of the Master Servicer, is likely to affect materially and adversely the ability of the Master Servicer to perform its obligations under this Agreement.
(iii) The Master Servicer has the full power and authority to enter into and consummate all transactions involving the Master Servicer 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 each of the other parties hereto, constitutes a valid, legal and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium and other laws affecting the enforcement of creditors’ rights generally and, to the extent applicable, the rights of creditors of national banks or of “financial companies” (as defined in Section 201 of the Xxxx-Xxxxx Act) or their Affiliates, (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law and (C) public policy considerations
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regarding the enforceability of provisions providing or purporting to provide indemnification or contribution with respect to violations of securities laws.
(v) The Master Servicer is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any 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 Master Servicer’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Master Servicer to perform its obligations under this Agreement.
(vi) No consent, approval, license, authorization or order of any state or federal court or governmental agency or body is required for the consummation by the Master Servicer of the transactions contemplated herein, except for those consents, approvals, licenses, authorizations or orders that previously have been obtained or where the lack of such consent, approval, license, authorization or order would not have a material adverse effect on the ability of the Master Servicer to perform its obligations under this Agreement, and, except to the extent in the case of performance, that its failure to be qualified as a foreign corporation or entity or licensed in one or more states is not necessary for the performance by it of its obligations hereunder.
(vii) No litigation is pending or, to the best of the Master Servicer’s knowledge, threatened against the Master Servicer that, if determined adversely to the Master Servicer, would prohibit the Master Servicer from entering into this Agreement or that, in the Master Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Master Servicer to perform its obligations under this Agreement.
(viii) The Master Servicer has errors and omissions insurance that is in full force and effect or is self-insuring with respect to such risks, in either case in compliance with the requirements of Section 3.07(e).
(b) The representations and warranties of the Master Servicer set forth in Section 2.05(a) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust remains in existence. Upon discovery by any party hereto of a breach of any of such representations and warranties that materially and adversely affects the interests of the Certificateholders or any party hereto, the party discovering such breach shall give prompt written notice to each of the other parties hereto.
(c) Any successor to the Master Servicer shall be deemed to have made, as of the date of its succession, each of the representations and warranties set forth in Section 2.05(a), subject to such appropriate modifications to the representation and warranty set forth in Section 2.05(a)(i) to accurately reflect such successor’s jurisdiction of organization and whether it is a corporation, partnership, bank, association or other type of organization.
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Section 2.06 Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to each of the other parties hereto and for the benefit of the Certificateholders, as of the Closing Date, that:
(i) The Special Servicer is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and the Special Servicer is in compliance with the laws of each State in which any related Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement, except where the failure to so qualify or comply would not materially adversely affect the Special Servicer’s ability to perform its obligations hereunder in accordance with the terms of this Agreement.
(ii) The Special Servicer’s execution and delivery of, performance under and compliance with this Agreement will not violate the Special Servicer’s organizational documents 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 agreement or other material instrument to which it is a party or by which it is bound, which default or breach, in the good faith and reasonable judgment of the Special Servicer, is likely to affect materially and adversely the ability of the Special Servicer to perform its obligations under this Agreement.
(iii) The Special Servicer has the full power and authority to enter into and consummate all transactions involving the Special Servicer 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 each of the other parties hereto, constitutes a valid, legal and binding obligation of the Special Servicer, enforceable against the Special Servicer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium and other laws affecting the enforcement of creditors’ rights generally and, to the extent applicable, the rights of creditors of national banks or of “financial companies” (as defined in Section 201 of the Xxxx-Xxxxx Act) or their Affiliates, (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law and (C) public policy considerations regarding the enforceability of provisions providing or purporting to provide indemnification or contribution with respect to violations of securities laws.
(v) The Special Servicer is not in violation of, and its execution and delivery of, performance under and compliance with the terms of this Agreement will not constitute a violation of, any law, any 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 Special Servicer’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Special Servicer to perform its obligations under this Agreement.
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(vi) No consent, approval, license, authorization or order of any state or federal court or governmental agency or body is required for the consummation by the Special Servicer of the transactions contemplated herein, except for those consents, approvals, licenses, authorizations or orders that previously have been obtained or where the lack of such consent, approval, license, authorization or order would not have a material adverse effect on the ability of the Special Servicer to perform its obligations under this Agreement.
(vii) No litigation is pending or, to the best of the Special Servicer’s knowledge, threatened against the Special Servicer that, if determined adversely to the Special Servicer, would prohibit the Special Servicer from entering into this Agreement or that, in the Special Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Special Servicer to perform its obligations under this Agreement.
(viii) The Special Servicer has errors and omissions insurance that is in full force and effect or is self-insuring with respect to such risks, in either case in compliance with the requirements of Section 3.07(e).
(b) The representations and warranties of the Special Servicer set forth in Section 2.06(a) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust remains in existence. Upon discovery by any party hereto of a breach of any of such representations and warranties that materially and adversely affects the interests of the Certificateholders or any party hereto, the party discovering such breach shall give prompt written notice to each of the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as of the date of its succession, each of the representations and warranties set forth in Section 2.06(a), subject to such appropriate modifications to the representation and warranty set forth in Section 2.06(a)(i) to accurately reflect such successor’s jurisdiction of organization and whether it is a corporation, partnership, bank, association or other type of organization.
Section 2.07 Representations and Warranties of the Trust Advisor.
(a) The Trust Advisor hereby represents and warrants to each of the other parties hereto and for the benefit of the Certificateholders, as of the Closing Date, that:
(i) The Trust Advisor is duly organized, validly existing and in good standing as a corporation under the laws of the State of Georgia and possesses all licenses and authorizations necessary to the performance of its obligations under this Agreement.
(ii) The Trust Advisor’s execution and delivery of, performance under and compliance with this Agreement will not violate the Trust Advisor’s organizational documents 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 agreement or other material instrument to which it is a party or by which it is bound, which default or breach, in the good faith and reasonable judgment of the Trust Advisor, is likely to
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affect materially and adversely the ability of the Trust Advisor to perform its obligations under this Agreement.
(iii) The Trust Advisor has the requisite corporate power and authority to enter into and consummate all transactions involving the Trust Advisor 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 each of the other parties hereto, constitutes a valid, legal and binding obligation of the Trust Advisor, enforceable against the Trust Advisor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium and other laws affecting the enforcement of creditors’ rights generally and, to the extent applicable, the rights of creditors of national banks or of “financial companies” (as defined in Section 201 of the Xxxx-Xxxxx Act) or their Affiliates, (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law and (C) public policy considerations regarding the enforceability of provisions providing or purporting to provide indemnification or contribution with respect to violations of securities laws.
(v) The Trust Advisor is not in violation of, and its execution and delivery of, performance under and compliance with the terms of this Agreement will not constitute a violation of, any law, any 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 Trust Advisor’s reasonable judgment, is likely to affect materially and adversely the ability of the Trust Advisor to perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by the Trust Advisor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained.
(vii) No litigation is pending or, to the best of the Trust Advisor’s knowledge, threatened against the Trust Advisor that, if determined adversely to the Trust Advisor, would prohibit the Trust Advisor from entering into this Agreement or that, in the Trust Advisor’s reasonable judgment, is likely to materially and adversely affect the ability of the Trust Advisor to perform its obligations under this Agreement.
(viii) The Trust Advisor is eligible to act in such capacity hereunder in accordance with Section 3.28.
(b) The representations and warranties of the Trust Advisor set forth in Section 2.07(a) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust remains in existence. Upon discovery by any party hereto of a breach of any of such representations and warranties that materially and adversely affects the interests of the Certificateholders or any
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party hereto, the party discovering such breach shall give prompt written notice to each of the other parties hereto.
(c) Any successor Trust Advisor shall be deemed to have made, as of the date of its succession, each of the representations and warranties set forth in Section 2.07(a), subject to such appropriate modifications to the representation and warranty set forth in Section 2.07(a)(i) to accurately reflect such successor’s jurisdiction of organization and whether it is a corporation, partnership, bank, association or other type of organization.
Section 2.08 Representations and Warranties of the Certificate Administrator.
(a) The Certificate Administrator hereby represents and warrants to each of the other parties hereto and for the benefit of the Certificateholders, as of the Closing Date, that:
(i) The Certificate Administrator is duly organized, validly existing and in good standing as a national banking association under the laws of the United States and possesses all licenses and authorizations necessary to the performance of its obligations under this Agreement.
(ii) The Certificate Administrator’s execution and delivery of, performance under and compliance with this Agreement will not violate the Certificate Administrator’s organizational documents 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 agreement or other material instrument to which it is a party or by which it is bound, which default or breach, in the good faith and reasonable judgment of the Certificate Administrator, is likely to affect materially and adversely the ability of the Certificate Administrator to perform its obligations under this Agreement.
(iii) The Certificate Administrator has the requisite power and authority to enter into and consummate all transactions involving the Certificate Administrator 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 each of the other parties hereto, constitutes a valid, legal and binding obligation of the Certificate Administrator, enforceable against the Certificate Administrator in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium and other laws affecting the enforcement of creditors’ rights generally and, to the extent applicable, the rights of creditors of national banks or of “financial companies” (as defined in Section 201 of the Xxxx-Xxxxx Act) or their Affiliates, (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law and (C) public policy considerations regarding the enforceability of provisions providing or purporting to provide indemnification or contribution with respect to violations of securities laws.
(v) The Certificate Administrator is not in violation of, and its execution and delivery of, performance under and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any
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order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Certificate Administrator’s reasonable judgment, is likely to affect materially and adversely the ability of the Certificate Administrator to perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by the Certificate Administrator of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained.
(vii) No litigation is pending or, to the best of the Certificate Administrator’s knowledge, threatened against the Certificate Administrator that, if determined adversely to the Certificate Administrator, would prohibit the Certificate Administrator from entering into this Agreement or that, in the Certificate Administrator’s reasonable judgment, is likely to materially and adversely affect the ability of the Certificate Administrator to perform its obligations under this Agreement.
(viii) The Certificate Administrator is eligible to act in such capacity hereunder in accordance with Section 8.06.
(b) The representations and warranties of the Certificate Administrator set forth in Section 2.08(a) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons for whose benefit they were made for so long as the Trust remains in existence. Upon discovery by any party hereto of a breach of any of such representations and warranties that materially and adversely affects the interests of the Certificateholders or any party hereto, the party discovering such breach shall give prompt written notice to each of the other parties hereto.
(c) Any successor Certificate Administrator shall be deemed to have made, as of the date of its succession, each of the representations and warranties set forth in Section 2.08(a), subject to such appropriate modifications to the representation and warranty set forth in Section 2.08(a)(i) to accurately reflect such successor’s jurisdiction of organization and whether it is a corporation, partnership, bank, association or other type of organization.
Section 2.09 Representations and Warranties of the Tax Administrator.
(a) The Tax Administrator hereby represents and warrants to each of the other parties hereto and for the benefit of the Certificateholders, as of the Closing Date, that:
(i) The Tax Administrator is duly organized, validly existing and in good standing as a national banking association under the laws of the United States and possesses all licenses and authorizations necessary to the performance of its obligations under this Agreement.
(ii) The Tax Administrator’s execution and delivery of, performance under and compliance with this Agreement will not violate the Tax Administrator’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a material breach of, any
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material agreement or other material instrument to which it is a party or by which it is bound, which default or breach, in the reasonable judgment of the Tax Administrator, is likely to affect materially and adversely the ability of the Tax Administrator to perform its obligations under this Agreement.
(iii) The Tax Administrator has the requisite power and authority to enter into and consummate all 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 each of the other parties hereto, constitutes the valid, legal and binding obligation of the Tax Administrator, enforceable against the Tax Administrator in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium and other laws affecting the enforcement of creditors’ rights generally and, to the extent applicable, the rights of creditors of national banks or of “financial companies” (as defined in Section 201 of the Xxxx-Xxxxx Act) or their Affiliates, (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law and (C) public policy considerations regarding the enforceability of provisions providing or purporting to provide indemnification or contribution with respect to violations of securities laws.
(v) The Tax Administrator is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any 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 Tax Administrator’s reasonable judgment, is likely to affect materially and adversely the ability of the Tax Administrator to perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by the Tax Administrator of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained.
(vii) No litigation is pending or, to the best of the Tax Administrator’s knowledge, threatened against the Tax Administrator that, if determined adversely to the Tax Administrator, would prohibit the Tax Administrator from entering into this Agreement or that, in the Tax Administrator’s reasonable judgment, is likely to materially and adversely affect the ability of the Tax Administrator to perform its obligations under this Agreement.
(viii) The Tax Administrator is eligible to act in such capacity hereunder in accordance with Section 8.06.
(b) The representations and warranties of the Tax Administrator set forth in Section 2.09(a) shall survive the execution and delivery of this Agreement and shall inure to the
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benefit of the Persons for whose benefit they were made for so long as the Trust remains in existence. Upon discovery by any party hereto of a breach of any such representations and warranties that materially and adversely affects the interests of the Certificateholders or any party hereto, the party discovering such breach shall give prompt written notice thereof to the other parties hereto, the Majority Subordinate Certificateholder and the Subordinate Class Representative.
(c) Any successor to the Tax Administrator shall be deemed to have made, as of the date of its succession, each of the representations and warranties set forth in Section 2.09(a), subject to such appropriate modifications to the representation and warranty set forth in Section 2.09(a)(i) to accurately reflect such successor’s jurisdiction of organization and whether it is a corporation, partnership, bank, association or other type of organization.
Section 2.10 Representations, Warranties and Covenants of the Trustee.
(a) The Trustee hereby represents and warrants to, and covenants with, each of the other parties hereto and for the benefit of the Certificateholders, as of the Closing Date, that:
(i) The Trustee is duly organized, validly existing and in good standing as a national banking association under the laws of the United States of America and is, shall be or, if necessary, shall appoint a co-trustee that is, in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to ensure the enforceability of each Mortgage Loan (insofar as such enforceability is dependent upon compliance by the Trustee with such laws) and to perform its obligations under this Agreement and possesses all licenses and authorizations necessary to the performance of its obligations under this Agreement.
(ii) The Trustee’s execution and delivery of, performance under and compliance with this Agreement, will not violate the Trustee’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a material breach of, any material agreement or other material instrument to which it is a party or by which it is bound, which breach or default, in the good faith and reasonable judgment of the Trustee is likely to affect materially and adversely the ability of the Trustee to perform its obligations under this Agreement.
(iii) The Trustee has the full power and authority to enter into and consummate all 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 each of the other parties hereto, constitutes a valid, legal and binding obligation of the