BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC., as Depositor,

 

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ARTICLE I DEFINITIONS;
CALCULATIONS AND CERTAIN OTHER MATTERS
Section 1.1	Definitions	6
Section 1.2	Calculations Respecting Mortgage Loans	101
Section 1.3	Calculations Respecting Accrued Interest	105
Section 1.4	Interpretation	105
Section 1.5	ARD Loans	106
Section 1.6	Certain Matters with Respect to Loan Pairs and A/B Whole Loans	106
Section 1.7	Rating Agency Confirmations	108
ARTICLE II
DECLARATION OF TRUST; ISSUANCES OF CERTIFICATES
Section 2.1	Conveyance of Mortgage Loans	111
Section 2.2	Acceptance by Trustee	114
Section 2.3	Sellers’ Repurchase of Mortgage Loans for Material Document Defects and Material Breaches of Representations and Warranties	116
Section 2.4	Representations and Warranties	124
Section 2.5	Conveyance of Interests	125
Section 2.6	Certain Matters Relating to Non-Serviced Mortgage Loans	126
ARTICLE III
THE CERTIFICATES
Section 3.1	The Certificates	127
Section 3.2	Registration	128
Section 3.3	Transfer and Exchange of Certificates	128
Section 3.4	Mutilated, Destroyed, Lost or Stolen Certificates	134
Section 3.5	Persons Deemed Owners	134
Section 3.6	Access to List of Certificateholders’ Names and Addresses	134
Section 3.7	Book-Entry Certificates	135
Section 3.8	Notices to Clearing Agency	139
Section 3.9	Definitive Certificates	139
Section 3.10	Exchanges of EC Trust Certificates	140

 

 

ARTICLE IV
ADVANCES
Section 4.1	P&I Advances by Master Servicer	142
Section 4.1A	P&I Advances with Respect to Non-Serviced Mortgage Loans and Serviced Pari Passu Mortgage Loans	143
Section 4.2	Servicing Advances	144
Section 4.3	Advances by the Trustee	144
Section 4.4	Evidence of Nonrecoverability	145
Section 4.5	Interest on Advances; Calculation of Outstanding Advances with Respect to a Mortgage Loan	147
Section 4.6	Reimbursement of Advances and Advance Interest	148
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1	Collections	150
Section 5.2	Withdrawals of Funds in the Collection Account	153
Section 5.3	Distribution Account and Reserve Accounts	163
Section 5.4	Certificate Administrator Reports	165
Section 5.5	Certificate Administrator Tax Reports	172
Section 5.6	Access to Certain Information	172
Section 5.7	Exchange Act Rule 17g-5 Procedures	174
ARTICLE VI
DISTRIBUTIONS
Section 6.1	Distributions Generally	181
Section 6.2	Compliance with Withholding Requirements	181
Section 6.3	REMIC I	182
Section 6.4	REMIC II	183
Section 6.5	REMIC III	183
Section 6.6	Allocation of Collateral Support Deficits	191
Section 6.7	Prepayment Interest Shortfalls and Net Aggregate Prepayment Interest Shortfalls	192
Section 6.8	Adjustment of Master Servicing Fees	193
Section 6.9	Appraisal Reductions	193
Section 6.10	Prepayment Premiums	197
Section 6.11	Allocation of Trust Advisor Expenses	198

 

 

ARTICLE VII
CONCERNING THE TRUSTEE, THE CUSTODIAN AND THE CERTIFICATE
ADMINISTRATOR
Section 7.1	Duties of the Trustee, the Custodian and the Certificate Administrator	203
Section 7.2	Certain Matters Affecting the Trustee, the Custodian and the Certificate Administrator	204
Section 7.3	The Trustee, the Custodian and the Certificate Administrator Not Liable for Certificates or Interests or Mortgage Loans	206
Section 7.4	The Trustee, the Custodian and the Certificate Administrator May Own Certificates	208
Section 7.5	Eligibility Requirements for the Trustee, the Custodian and the Certificate Administrator	208
Section 7.6	Resignation and Removal of the Trustee, the Custodian or the Certificate Administrator	209
Section 7.7	Successor Trustee, Custodian or Certificate Administrator	213
Section 7.8	Merger or Consolidation of Trustee, Custodian or Certificate Administrator	214
Section 7.9	Appointment of Co-Trustee, Separate Trustee, Agents or Custodian	214
Section 7.10	Authenticating Agents	216
Section 7.11	Indemnification of Trustee, the Custodian and the Certificate Administrator	217
Section 7.12	Fees and Expenses of Trustee, Custodian and the Certificate Administrator	220
Section 7.13	Collection of Moneys	220
Section 7.14	Trustee To Act; Appointment of Successor	221
Section 7.15	Notification to Holders	223
Section 7.16	Representations and Warranties of the Trustee, the Custodian and the Certificate Administrator	223
Section 7.17	Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Trustee, the Custodian and the Certificate Administrator	226
Section 7.18	Capacities	226
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1	Servicing Standard; Servicing Duties	228
Section 8.2	Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Master Servicer	230
Section 8.3	Master Servicer’s General Power and Duties	231
Section 8.4	Sub-Servicing	238
Section 8.5	Master Servicer May Own Certificates	239
Section 8.6	Maintenance of Hazard Insurance, Other Insurance, Taxes and Other	239

 

 

Section 8.7	Enforcement of “Due-on-Sale” Clauses; Assumption Agreements; “Due-on-Encumbrance” Clause	242
Section 8.8	Custodian to Cooperate; Release of Trust Mortgage Files	245
Section 8.9	Documents, Records and Funds in Possession of Master Servicer to be Held for the Trustee for the Benefit of the Certificateholders	246
Section 8.10	Servicing Compensation	247
Section 8.11	Master Servicer Reports; Account Statements	250
Section 8.12	Reserved	252
Section 8.13	Reserved	252
Section 8.14	CREFC® Operating Statement Analysis Reports Regarding the Mortgaged Properties	252
Section 8.15	Other Available Information and Certain Rights of the Master Servicer	253
Section 8.16	Rule 144A Information	255
Section 8.17	Inspections	256
Section 8.18	Modifications, Waivers, Amendments, Extensions and Consents	256
Section 8.19	Specially Serviced Mortgage Loans	258
Section 8.20	Representations, Warranties and Covenants of the Master Servicer	259
Section 8.21	Merger or Consolidation	260
Section 8.22	Resignation of Master Servicer	261
Section 8.23	Assignment or Delegation of Duties by Master Servicer	262
Section 8.24	Limitation on Liability of the Master Servicer and Others	262
Section 8.25	Indemnification; Third-Party Claims	264
Section 8.26	Loan Registry	267
Section 8.27	Compliance with REMIC Provisions and Grantor Trust Provisions	267
Section 8.28	Termination	268
Section 8.29	Procedure Upon Termination	271
Section 8.30	Certain Matters with Respect to Joint Mortgage Loans	273
	ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS
BY SPECIAL SERVICER
Section 9.1	Duties of Special Servicer	278
Section 9.2	Fidelity Bond and Errors and Omissions Insurance Policy of Special Servicer	279
Section 9.3	Special Servicer General Powers and Duties	280
Section 9.4	Sub-Servicers	282
Section 9.5	“Due-on-Sale” Clauses; Assignment and Assumption Agreements; Modifications of Specially Serviced Mortgage Loans; “Due-on-Encumbrance” Clauses	282
Section 9.6	Release of Mortgage Files	287
Section 9.7	Documents, Records and Funds in Possession of Special Servicer To Be Held for the Trustee	288
Section 9.8	Representations, Warranties and Covenants of the Special Servicer	289

 

 

Section 9.9	Standard Hazard, Flood and Comprehensive General Liability Insurance Policies	290
Section 9.10	Presentment of Claims and Collection of Proceeds	292
Section 9.11	Compensation to the Special Servicer	292
Section 9.12	Realization Upon Defaulted Mortgage Loans	295
Section 9.13	Foreclosure	298
Section 9.14	Operation of REO Property	298
Section 9.15	Sale of REO Property	302
Section 9.16	Realization on Collateral Security	303
Section 9.17	Sale of Defaulted Mortgage Loans	303
Section 9.18	A/B Whole Loans	308
Section 9.19	Reserved	308
Section 9.20	Merger or Consolidation	308
Section 9.21	Resignation of Special Servicer	309
Section 9.22	Assignment or Delegation of Duties by Special Servicer	310
Section 9.23	Limitation on Liability of the Special Servicer and Others	311
Section 9.24	Indemnification; Third-Party Claims	313
Section 9.25	Reserved	316
Section 9.26	Special Servicer May Own Certificates	316
Section 9.27	Tax Reporting	316
Section 9.28	Application of Funds Received	316
Section 9.29	Compliance with REMIC Provisions and Grantor Trust Provisions	316
Section 9.30	Termination	317
Section 9.31	Procedure Upon Termination	323
Section 9.32	Certain Special Servicer Reports	324
Section 9.33	Special Servicer to Cooperate with the Master Servicer, the Trustee, the Custodian and the Certificate Administrator	328
Section 9.34	Litigation Control	330
ARTICLE X
CERTAIN MATTERS RELATING TO THE CONTROLLING CLASS REPRESENTATIVE,
THE TRUST ADVISOR AND THE HOLDERS OF THE B NOTES AND SERVICED
COMPANION LOANS
Section 10.1	Selection and Removal of the Controlling Class Representative	333
Section 10.2	Limitation on Liability of Controlling Class Representative; Acknowledgements of the Certificateholders	334
Section 10.3	Rights and Powers of Controlling Class Representative	334
Section 10.4	Controlling Class Representative and Trust Advisor Contact with Master Servicer and Special Servicer	338
Section 10.5	Appointment, Duties and Compensation of the Trust Advisor	338
Section 10.6	Representations, Warranties and Covenants of the Trust Advisor	342
Section 10.7	Merger or Consolidation of the Trust Advisor	343
Section 10.8	Resignation of Trust Advisor	344
Section 10.9	Assignment or Delegation of Duties by Trust Advisor	345

 

 

Section 10.10	Limitation on Liability of the Trust Advisor and Others	345
Section 10.11	Indemnification; Third-Party Claims	347
Section 10.12	Termination of the Trust Advisor	348
Section 10.13	Rights of the Holders of a B Note and Serviced Companion Loan	352
Section 10.14	Rights of Non-Directing Holders	354
ARTICLE XI
PURCHASE AND TERMINATION OF THE TRUST
Section 11.1	Termination of Trust Upon Repurchase or Liquidation of All Mortgage Loans	355
Section 11.2	Procedure Upon Termination of Trust	357
Section 11.3	Additional Trust Termination Requirements	358
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1	REMIC Administration	360
Section 12.2	Prohibited Transactions and Activities	365
Section 12.3	Modifications of Mortgage Loans	365
Section 12.4	Liability with Respect to Certain Taxes and Loss of REMIC Status	366
Section 12.5	EC Trust	366
Section 12.6	Grantor Trust Reporting Requirements	367
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1	Intent of the Parties; Reasonableness	369
Section 13.2	Information to be Provided by the Master Servicer, the Special Servicer, the Custodian, any Primary Servicer and the Certificate Administrator	369
Section 13.3	Filing Obligations	372
Section 13.4	Form 10-D Filings	372
Section 13.5	Form 10-K Filing	374
Section 13.6	▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification	376
Section 13.7	Form 8-K Filings	377
Section 13.8	Suspension of Exchange Act Filings; Incomplete Exchange Act Filings; Amendments to Exchange Act Reports	379
Section 13.9	Annual Compliance Statements	380
Section 13.10	Annual Reports on Assessment of Compliance with Servicing Criteria	382
Section 13.11	Annual Independent Public Accountants’ Servicing Report	384
Section 13.12	Indemnification	385
Section 13.13	Amendments	387
Section 13.14	Exchange Act Report Signatures	387

 

 

Section 13.15	Significant Obligors	387
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1	Binding Nature of Agreement	390
Section 14.2	Entire Agreement	390
Section 14.3	Amendment	390
Section 14.4	GOVERNING LAW	393
Section 14.5	Notices	393
Section 14.6	Severability of Provisions	395
Section 14.7	Indulgences; No Waivers	395
Section 14.8	Headings Not to Affect Interpretation	395
Section 14.9	Benefits of Agreement	395
Section 14.10	Reserved	396
Section 14.11	Counterparts	396
Section 14.12	Intention of Parties	396
Section 14.13	Recordation of Agreement	397
Section 14.14	Rating Agency Surveillance Fees	397
Section 14.15	Waiver of Jury Trial	398
Section 14.16	Submission to Jurisdiction	398
Section 14.17	Limitation on Rights of Holders	398
Section 14.18	Acts of Holders of Certificates	399
Section 14.19	[Reserved]	400
Section 14.20	Precautionary Trust Indenture Act Provisions	400
Section 14.21	Limitation on Liability of the Depositor and Others	400

 

 

EXHIBITS AND SCHEDULES
EXHIBIT A-1	Form of Class A-1 Certificate
EXHIBIT A-2	Form of Class A-2 Certificate
EXHIBIT A-3	Form of Class A-SB Certificate
EXHIBIT A-4	Form of Class A-3 Certificate
EXHIBIT A-5	Form of Class A-4 Certificate
EXHIBIT A-6	Form of Class A-S Certificate
EXHIBIT A-7	Form of Class B Certificate
EXHIBIT A-8	Form of Class PST Certificate
EXHIBIT A-9	Form of Class C Certificate
EXHIBIT A-10	Form of Class X-A Certificate
EXHIBIT A-11	Form of Class X-B Certificate
EXHIBIT A-12	Form of Class D Certificate
EXHIBIT A-13	Form of Class E Certificate
EXHIBIT A-14	Form of Class F Certificate
EXHIBIT A-15	Form of Class G Certificate
EXHIBIT A-16	Form of Class H Certificate
EXHIBIT A-17	Form of Class R Certificate
EXHIBIT B-1	Form of Initial Certification (Section 2.2)
EXHIBIT B-2	Form of Final Certification (Section 2.2)
EXHIBIT C	Form of Request for Release
EXHIBIT D-1	Form of Transferor Certificate for Transfers of Definitive Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2A	Form I of Transferee Certificate for Transfers of Definitive Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2B	Form II of Transferee Certificate for Transfers of Definitive Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3	Form of Transfer Certificate to an Interest in a Rule 144A Global Certificate
EXHIBIT E-1	Form of Transferee Affidavit and Agreement (Class R) (Section 3.3(e))
EXHIBIT E-2	Form of Transferor Affidavit and Agreement (Class R) (Section 3.3(e))
EXHIBIT F	Form of Regulation S Certificate
EXHIBIT G	Form of Exchange Certification
EXHIBIT H	Form of Euroclear Bank or Clearstream Bank Certificate (Section 3.7(d))
EXHIBIT I	Form of Investor Certification
EXHIBIT J	Form of NRSRO Certification
EXHIBIT K	Form of Distribution Date Statement
EXHIBIT L	Form of Trust Advisor Annual Report
EXHIBIT M	Form of Financial Market Publishers Certification (Section 5.4(h))
EXHIBIT N	Form of Notice and Certification Regarding Defeasance of Mortgage Loans
EXHIBIT O-1	Form of Power of Attorney to Master Servicer (Section 8.3(c))
EXHIBIT O-2	Form of Power of Attorney to Special Servicer (Section 9.3(a))
EXHIBIT P-1	Form of Performance Certification (Section 13.6)
EXHIBIT P-2	Reporting Servicer Form of Performance Certification (Section 13.6)

 

 

EXHIBIT Q	Form of Exchange Letter
EXHIBIT R-1	Form of Transferor Certificate for Transfer of the Excess Servicing Fee Rights
EXHIBIT R-2	Form of Transferee Certificate for Transfer of the Excess Servicing Fee Rights
SCHEDULE I	BANA Loan Schedule
SCHEDULE II	MSMCH Loan Schedule
SCHEDULE III	Reserved
SCHEDULE IV	Reserved
SCHEDULE V	List of Mortgage Loans Secured by the Interest of the Related Mortgagor Under a Ground Lease (Section 8.3(i))
SCHEDULE VI	List of Mortgagors that are Third-Party Beneficiaries Under Section 2.3(a)
SCHEDULE VII	Certain Escrow Accounts for Which a Required Repair is Outstanding Under Section 5.1(g)
SCHEDULE VIII	Mortgage Loans as to Which a Lender Register is to be Maintained
SCHEDULE IX	Mortgage Loans Secured by Mortgaged Properties Covered by an Environmental Insurance Policy
SCHEDULE X	Servicing Criteria to be Addressed in Assessment of Compliance
SCHEDULE XI	Additional Form 10-D Disclosure
SCHEDULE XII	Additional Form 10-K Disclosure
SCHEDULE XIII	Form 8-K Disclosure Information
SCHEDULE XIV	Additional Disclosure Notification
SCHEDULE XV	Seller Sub-Servicers
SCHEDULE XVI	Letters of Credit
SCHEDULE XVII	Class A-SB Planned Principal Balance

 

 

 

 

 

 

 

or organized under the laws of the United States of America or any State thereof and subject to supervision and examination by federal or state banking authorities, so long as the commercial paper or other short-term debt obligations of such depository institution or trust company are rated “A-1+” (or, if the obligation matures in 60 days or less, “A-1”) by S&P and “F1” by Fitch, or the long-term unsecured debt obligations of such depository institution or trust company have been assigned a rating by each Rating Agency at least equal to “AA-” by S&P and “AA” by Fitch or, in each case, if not rated by a Rating Agency, then such Rating Agency has issued a Rating Agency Confirmation;

 

 

 

 

 

 

 

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, security or investment; and

 

 

 

 

 

 

of such Mortgage Loan, Mortgaged Property or REO Property, as the case may be, for the benefit of, among others, the Trustee on behalf of the Certificateholders.

 

 

 

 

 

 

 

 

 

 

B Note, or, in the case of an REO Property related to a Loan Pair, a Principal Prepayment in full had been made with respect to both the Serviced Pari Passu Mortgage Loan and the Serviced Companion Loan) on the date such proceeds were received plus accrued and unpaid interest with respect to such Mortgage Loan and any and all expenses (including Additional Trust Expenses and Unliquidated Advances) with respect to such Mortgage Loan.  In the case of a Serviced Pari Passu Mortgage Loan, Excess Liquidation Proceeds means only the pro rata share of such proceeds that are allocated to the Trust.

 

 

 

 

 

Charges as described in the preceding clause (a), which expenses have been recovered from the related Mortgagor or otherwise.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

B Note, Serviced Companion Loan or REO Property, without regard to any obligation of the Master Servicer, the Special Servicer or the Trustee, as the case may be, to make payments from its own funds pursuant to Article IV hereof, have been recovered.

 

 

 

 

 

 

 

 

 

 

 

 

 

Certificate beneficially owned by the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Trust Advisor, a manager of a Mortgaged Property, a Mortgagor or any of their respective Affiliates will be deemed not to be outstanding and the Voting Rights to which they are entitled will not be taken into account in determining whether the requisite percentage of Voting Rights necessary to effect any such consent or take any such action has been obtained.  Notwithstanding the foregoing, for purposes of obtaining the consent of Certificateholders to an amendment of this Agreement, any Certificate beneficially owned by the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Trust Advisor, the Certificate Administrator, the Custodian or any of their Affiliates will be outstanding if such amendment does not relate to the termination, increase in compensation or material reduction of obligations of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Trust Advisor, the Certificate Administrator, the Custodian or any of their Affiliates.  Also, notwithstanding the foregoing, the restrictions above will not apply to the exercise of the rights of the Master Servicer, the Special Servicer or an Affiliate of the Master Servicer or the Special Servicer, if any, as a member of the Controlling Class.

 

 

 

 

purposes of Section 860D(a) of the Code), or cause any income realized in respect of such REO Property to fail to qualify as Rents from Real Property.

 

 

 

 

 

 

 

 

 

 

 

 

Certificates, REMIC III Regular Interest or the Class PST Certificates, the period beginning on the first (1st) day of the month preceding the month in which such Distribution Date occurs and ending on the last day of the month immediately preceding the month in which such Distribution Date occurs.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

payments or as Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase Proceeds or otherwise, that represent payments or collections of Scheduled Payments due but delinquent for a previous Collection Period and not previously recovered; provided that “Late Collections” shall not include any Actual Recoveries of Trust Advisor Expenses.

 

 

 

 

 

 

each case, only to the extent those Excess Modification Fees have not previously been deducted from a Workout Fee or Liquidation Fee.  No Liquidation Fee will be payable based upon, or out of, Liquidation Proceeds received in connection with (i) the repurchase of, or substitution for, any Mortgage Loan by the related Seller for a Material Breach or Material Document Defect, if such repurchase or substitution occurs on or before the later of (x) 180 days after the discovery or receipt of notice by the related Seller of the Material Document Defect or Material Breach, as applicable, that gave rise to the particular repurchase or substitution obligation, and (y) the expiration of the time period (or extension thereof) provided for such repurchase or substitution if such repurchase or substitution occurs prior to the termination of any applicable extended resolution period, (ii) the purchase of any Specially Serviced Mortgage Loan that is, or is part of, an A/B Whole Loan or Loan Pair by the holder of the related B Note or Serviced Companion Loan, as applicable, within ninety (90) days following the date that the subject Mortgage Loan became a Specially Serviced Mortgage Loan, (iii) the purchase of any Specially Serviced Mortgage Loan by the holder of any related mezzanine loan, pursuant to the related mezzanine loan intercreditor agreement, within the ninety (90) days following the date that such holder’s option to purchase such Specially Serviced Mortgage Loan first becomes exercisable, (iv) the purchase of all of the Mortgage Loans and REO Properties in connection with an optional termination of the Trust, (v) the purchase of any Specially Serviced Mortgage Loan by the Special Servicer or any Affiliate thereof (other than the Controlling Class Representative), or (vi) the purchase of any Specially Serviced Mortgage Loan or related REO Property, by the Controlling Class Representative or any affiliate thereof (other than the Special Servicer), if such purchase occurs within ninety (90) days after the date on which the Special Servicer delivers to the Controlling Class Representative for its approval the initial Asset Status Report with respect to such Specially Serviced Mortgage Loan.  For the avoidance of doubt, the Special Servicer may not receive a Workout Fee and a Liquidation Fee with respect to the same proceeds collected on a Mortgage Loan, Serviced Companion Loan, B Note or REO Loan.  Notwithstanding the foregoing, if a Mortgage Loan becomes a Specially Serviced Mortgage Loan only because of an event described in clause (i) of the definition of “Servicing Transfer Event” and the related Liquidation Proceeds are received within four (4) months following the related maturity date as a result of the related Mortgage Loan being refinanced or otherwise repaid in full, the Special Servicer shall not be entitled to collect a Liquidation Fee out of the proceeds received in connection with such liquidation if such fee would reduce the amount available for distributions to Certificateholders, but the Special Servicer may collect from the related Mortgagor and retain (x) a liquidation fee, (y) such other fees as are provided for in the related Mortgage Loan documents and (z) other appropriate fees in connection with such liquidation.

 

 

 

 

duplication, of (1) the Unpaid Principal Balance of the Mortgage Loan or the related REO Mortgage Loan, as the case may be, as of the date of the Cash Liquidation, or other liquidation or REO Disposition, plus (2) unpaid interest and interest accrued thereon at the applicable Mortgage Rate through the Due Date (or, in the case of a Balloon Mortgage Loan past its Maturity Date or an REO Property, the date that would otherwise be the Due Date) in the Collection Period in which the Cash Liquidation or other liquidation or REO Disposition occurred, plus (3) any expenses (including Additional Trust Expenses, unpaid Servicing Advances and unpaid Advance Interest, but excluding Trust Advisor Expenses) incurred in connection with such Mortgage Loan or REO Property that have been paid or are payable or reimbursable to any Person, other than amounts included in the definition of Liquidation Expenses and amounts previously treated as Expense Losses attributable to principal (and interest thereon), plus (4) any Unliquidated Advances incurred with respect to such Mortgage Loan or REO Property; over (B) the sum of (1) REO Income applied as recoveries of principal or interest on the related Mortgage Loan or REO Property, and (2) Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, Late Collections and all other amounts recovered from the related Mortgagor and received during the Collection Period in which such Cash Liquidation, or other liquidation or REO Disposition occurred and which are not required under any Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.30 hereof, the applicable Mortgage Loan documents) or Non-Serviced Mortgage Loan Intercreditor Agreement to be payable or reimbursable to any holder of a B Note, a Serviced Companion Loan or a Non-Serviced Companion Loan.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$2,500,000, any material property management company changes, including, without limitation, approval of the termination of a manager and appointment of a new property manager;

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

been delivered to the appropriate recorder’s office for recordation, certified true copies of such assignments of Mortgage certified by the applicable Seller, or in the case of an original blanket intervening assignment of Mortgage retained by the applicable Seller, a copy thereof certified by the applicable Seller or, if any original intervening assignment of Mortgage has not yet been returned on or prior to the 45th day following the Closing Date from the applicable recording office or has been lost after recordation, a true and correct copy thereof, together with (A) in the case of a delay caused by the public recording office, an Officer’s Certificate of the applicable Seller stating that such original intervening assignment of Mortgage has been sent to the appropriate public recording official for recordation or (B) in the case of an original intervening assignment of Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such assignment is recorded that such copy is a true and complete copy of the original recorded intervening assignment of Mortgage;

 

 

 

 

 

title company with an original (which may be electronic) or a copy (which may be electronic) Title Insurance Policy to follow within 180 days of the Closing Date;

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the Special Servicer or the Trustee, that, in its respective sole discretion, exercised in good faith and, with respect to the Master Servicer and the Special Servicer, taking into account the Servicing Standard, will not be or, in the case of a current delinquency, would not be, ultimately recoverable, from Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or Purchase Proceeds (or from any other collections) with respect to the related Mortgage Loan or Serviced Companion Loan (and taking into consideration any Crossed Mortgage Loans) (in the case of Servicing Advances) or B Note (in the case of Servicing Advances) or REO Property (in the case of P&I Advances and Servicing Advances), as evidenced by an Officer’s Certificate delivered pursuant to Section 4.4.

 

 

 

 

 

 

 

 

 

 

 

 

Chrysler East Building Mortgage Loan and the Chrysler East Building Non-Serviced Companion Loan are serviced.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

represent Default Interest and/or Late Fees but excluding any amounts allocable to a Non-Serviced Mortgage Loan and its related Non-Serviced Companion Loan pursuant to the terms of the related Non-Serviced Mortgage Loan Intercreditor Agreement.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

case, represents a recovery of an amount previously determined (in a Collection Period for a prior Distribution Date) to have been a Nonrecoverable Advance (or interest thereon) and for which a deduction was made under clause (II)(B) below with respect to a prior Distribution Date; and

 

 

 

 

 

 

 

 

 

 

Agreement, (ii) any correspondence or communications between the Controlling Class Representative and the Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special Servicer or other party related to the exercise of any consultation rights with respect to a Non-Serviced Mortgage Loan, (iii) any strategically sensitive information that the Special Servicer has reasonably determined could compromise the Trust’s position in any ongoing or future negotiations with the related Mortgagor or other interested party, and (iv) any legally privileged information; provided that the summary of any Final Asset Status Report prepared pursuant to Section 10.5(a) is deemed not to be Privileged Information (although no such summary shall be made available to any Mortgagor, Manager, Affiliate of a Mortgagor or Manager or agent of any of the foregoing that relates to the Mortgage Loan as to which the applicable Final Asset Status Report relates).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

of the Special Servicer, consistent with the Servicing Standard raise material issues that have not been adequately addressed; and (viii) as to which the Trustee and the Certificate Administrator have received an Opinion of Counsel, at the related Seller’s expense, that such Mortgage Loan is a “qualified replacement mortgage” within the meaning of Section 860G(a)(4) of the Code; provided that no Mortgage Loan may have a Maturity Date after the date three (3) years prior to the Rated Final Distribution Date, and provided, further, that no such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless a Rating Agency Communication has been provided to each Rating Agency  and a Rating Agency Confirmation has been obtained from S&P, and provided, further, that, during any Subordinate Control Period, no such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless the Controlling Class Representative shall have approved of such substitution (provided, that such approval of the Controlling Class Representative may not be unreasonably withheld).  If either one mortgage loan is substituted for more than one Deleted Mortgage Loan or more than one mortgage loan is substituted for one or more Deleted Mortgage Loans, then (A) the principal balances referred to in clause (i) above shall be determined on the basis of aggregate principal balances and (B) the rates referred to in clause (ii) above and the remaining term to stated maturity referred to in clause (iii) above shall be determined on a weighted average basis (provided, that the Net Mortgage Rate for any Qualifying Substitute Mortgage Loan may not be less than the highest Pass-Through Rate of any outstanding Class of Certificates that is not based on, or subject to a cap equal to, the Weighted Average REMIC I Net Mortgage Rate).  Whenever a Qualifying Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan pursuant to this Agreement, the party effecting such substitution shall certify that such Mortgage Loan meets all of the requirements of this definition and shall send such certification to the Certificate Administrator, which shall deliver a copy of such certification to the Master Servicer, the Special Servicer, the Trustee, the Custodian and the Controlling Class Representative promptly, and in any event within five (5) Business Days following the Certificate Administrator’s receipt of such certification.

 

 

 

 

 

 

event so specified will not, in and of itself, result in the downgrade or withdrawal of the then-current rating assigned to any Class of Certificates or, if applicable, any class of securities backed by a Serviced Companion Loan Securities or securities related to a Non-Serviced Mortgage Loan, in each case, if then rated by the Rating Agency; provided, that a written waiver or other acknowledgment from any Rating Agency indicating its decision not to review the matter for which the Rating Agency Confirmation (or such other waiver as set forth in Section 1.7) is sought shall be deemed to satisfy the requirement for the Rating Agency Confirmation from such Rating Agency with respect to such matter.  To the extent a rating agency has been engaged to rate any class of securities backed by a Serviced Companion Loan, a “Rating Agency Confirmation” will also require similar written confirmation from each such rating agency with respect to such securities.  To the extent a rating agency has been engaged to rate any class of securities backed by a Non-Serviced Companion Loan, a “Rating Agency Confirmation” will also require similar written confirmation from each such rating agency with respect to such securities to the extent the matter affects such Non-Serviced Companion Loan.  At any time during which no Certificates, Serviced Companion Loan Securities or securities related to a Non-Serviced Mortgage Loan are rated by a Rating Agency, no Rating Agency Confirmation shall be required from that Rating Agency.

 

 

 

 

 

 

(including REO Mortgage Loans), and (vi) any Unliquidated Advance that is determined by the Master Servicer to be a Nonrecoverable Advance.

 

 

 

 

 

 

 

 

 

 

 

 

 

Required Appraisal Loan is a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other Appraisal Event has occurred and is continuing) and (iii) the Trust has been reimbursed for all costs incurred as a result of the occurrence of a Servicing Transfer Event, such amounts constitute a Workout-Delayed Reimbursement Amount, or such amounts have been forgiven.  An A Note shall not constitute a Rehabilitated Mortgage Loan unless its related B Note would constitute a Rehabilitated Mortgage Loan.  A B Note shall not constitute a Rehabilitated Mortgage Loan unless its related A Note also would constitute a Rehabilitated Mortgage Loan.  A Serviced Pari Passu Mortgage Loan shall not constitute a Rehabilitated Mortgage Loan unless its related Serviced Companion Loan would constitute a Rehabilitated Mortgage Loan.  A Serviced Companion Loan shall not constitute a Rehabilitated Mortgage Loan unless its related Serviced Pari Passu Mortgage Loan also would constitute a Rehabilitated Mortgage Loan.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Principal Amount, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate from time to time.

 

 

 

 

 

 

 

 

 

 

Interest A-S, the REMIC II Regular Interest B, the REMIC II Regular Interest C, the REMIC II Regular Interest D, the REMIC II Regular Interest E, the REMIC II Regular Interest F, the REMIC II Regular Interest G and the REMIC II Regular Interest H.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

and all references to the Special Servicer’s obligations in this Agreement with respect to “REO Property” shall exclude any such Mortgaged Property that secures a Non-Serviced Mortgage Loan.