CO-LENDER AGREEMENT Dated as of July 25, 2018

Exhibit 4.10

 

EXECUTION VERSION

 

CO-LENDER AGREEMENT

 

Dated as of July 25, 2018

 

by and between

 

NATIXIS REAL ESTATE CAPITAL LLC

(Note A Holder)

 

and

 

NATIXIS REAL ESTATE CAPITAL LLC

(Note B-1 Holder)

 

and

 

NATIXIS REAL ESTATE CAPITAL LLC

(Note B-2 Holder)

 

QUEENS PLACE

 

 

THIS CO-LENDER AGREEMENT (the “Agreement”), dated as of July 25, 2018 by and among NATIXIS REAL ESTATE CAPITAL LLC, a Delaware limited liability company (“Natixis”), having an address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (in its capacity as initial owner of Note A, the “Initial Note A Holder”, and in its capacity as the initial agent, the “Initial Agent”), and Natixis, having an address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (in its capacity as initial owner of Note B-1, the “Initial Note B-1 Holder”) and Natixis, having an address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (in its capacity as initial owner of Note B-2, the “Initial Note B-2 Holder”).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to the Loan Agreement (as defined herein) Natixis originated a certain loan described on the schedule attached hereto as Exhibit A (the “Mortgage Loan Schedule”) (the “Mortgage Loan”) to the mortgage loan borrower(s) described on the Mortgage Loan Schedule (the “Mortgage Loan Borrower”), which is evidenced by (a) that certain Consolidated, Amended and Restated Promissory Note in the principal amount of $100,000,000.00 dated as of April 12, 2018 (the “Original Note”), and secured by a certain first deed of trust lien (as amended, modified or supplemented, the “Mortgage”) on one or more parcels of, or estates in, real property located as described on the Mortgage Loan Schedule (collectively, the “Mortgaged Property”);

 

WHEREAS, Natixis has elected to amend and restate the Original Note and split the Original Note into three (3) promissory notes as follows: (i) Promissory Note A in the principal amount of $42,000,000.00 (as amended, modified or supplemented, “Note A”) made by the Mortgage Loan Borrower in favor of the Initial Note A Holder; (ii) Promissory Note B-1 in the original principal amount of $43,000,000.00 (as amended, modified or supplemented, “Note B-1”) made by the Mortgage Loan Borrower in favor of the Initial Note B-1 Holder; and (iii) Promissory Note B-2 in the original principal amount of $15,000,000.00 (as amended, modified or supplemented, “Note B-2”) made by the Mortgage Loan Borrower in favor of the Initial Note B-2 Holder; and

 

WHEREAS, the Initial Note A Holder, the Initial Note B-1 Holder and the Initial Note B-2 Holder desire to enter into this Agreement to memorialize the terms under which the Initial Note A Holder the Initial Note B-1 Holder and the Initial Note B-2 Holder are holding Note A, Note B-1 and Note B-2, respectively, in the Mortgage Loan.

 

NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually agree as follows:

 

Section 1.           Definitions; Conflicts. References to a “Section” or the “recitals” are, unless otherwise specified, to a Section or the recitals of this Agreement. Capitalized terms used but not otherwise defined herein shall have the meaning assigned to such term or such other analogous term used in (i) prior to the Securitization Date, the Model PSA and (ii) from and after the Securitization Date, the Servicing Agreement. To the extent of any inconsistency between this Agreement and the Servicing Agreement, the terms of this Agreement shall control.

 

 

Whenever used in this Agreement, the following terms shall have the respective meanings set forth below unless the context clearly requires otherwise.

 

“Acceptable Insurance Default” (i) prior to the Securitization Date, shall have the meaning assigned to such term in the Model PSA or such other analogous term used in the Model PSA and (ii) from and after the Securitization Date, shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement.

 

“Additional Servicing Expenses” shall mean (a) all property protection advances, fees and/or expenses incurred by and reimbursable to any Servicer, Trustee, Securitization Operating Advisor, certificate administrator or pursuant to the Servicing Agreement, and (b) all interest accrued on Advances made by any Servicer or Trustee in accordance with the terms of the Servicing Agreement; provided that: (i) the aggregate special servicing fee (which fee is payable solely during the period that the Mortgage Loan is specially serviced) shall not exceed 0.25% (subject to industry standard monthly floor amounts, if so provided in the Servicing Agreement), (ii) the special servicing liquidation fee (or equivalent) shall not exceed 1.00% of the collections made with respect to the Mortgage Loan or any sums received from proceeds from the disposition of the Mortgaged Property or the Mortgage Loan, as the case may be (subject to a floor of $25,000); and (iii) the special servicing workout fee (or equivalent) shall not exceed 1.00% of the collections made with respect to the Mortgage Loan while the Mortgage Loan is a performing or Corrected Mortgage Loan (subject to a floor of $25,000).

 

“Advance Interest Amount” shall mean interest payable on Advances, as specified in the Servicing Agreement.

 

“Advances” shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement.

 

“Affiliate” shall mean, with respect to any specified Person, any other Person Controlling, Controlled by or under common Control with such specified Person.

 

“Agent” shall mean the Initial Agent or such Person to whom the Initial Agent shall delegate its duties hereunder, and from and after the Securitization Date shall mean the Master Servicer in its role as “Companion Paying Agent” (or equivalent term) under the Servicing Agreement.

 

“Agent Office” shall mean the designated office of the Agent in the State of New York, which office at the date of this Agreement is located at Natixis Real Estate Capital LLC, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and which is the address to which notices to and correspondence with the Agent should be directed. The Agent may change the address of its designated office by notice to the Noteholders.

 

“Agreement” shall mean this Co-Lender Agreement, the exhibits and schedules hereto and all amendments hereof and supplements hereto.

 

“Appraisal” (i) prior to the Securitization Date, shall have the meaning assigned to such term in the Model PSA or such other analogous term used in the Model PSA and (ii)

 

 

 

from and after the Securitization Date, shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement.

 

“Appraisal Reduction Amount” shall mean:

 

(A)          prior to the Securitization Date, after the occurrence of an Appraisal Trigger Event, an amount (calculated immediately following the later of the date on which the Appraisal Trigger Event occurs 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 outstanding Principal Balance of the Mortgage Loan as of the applicable date of determination, (ii) to the extent not previously advanced by or on behalf of the Master Servicer or the Trustee, all unpaid interest on the Mortgage Loan through the most recent Due Date prior to the date of determination (exclusive of any portion thereof that represents Default Interest), (iii) all other amounts (excluding principal, default interest, late charges, penalty charges, exit fees, Prepayment Premiums and any similar amounts) due and unpaid with respect to the Mortgage Loan, (iv) all related unreimbursed 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 Mortgage Loan, (v) any other unpaid trust fund expenses (excluding any costs that do not relate directly to the Mortgage 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: (i) the excess, if any, of (x) 90% of the Appraised Value of the Mortgaged Property (or REO Property) as determined by the applicable Appraisal or any letter update of such Appraisal, over (y) the amount of any obligations secured by liens on such Mortgaged Property (or REO Property) that are prior to the lien of the Mortgage Loan; plus (ii) the amount of any Escrow Payments and/or reserve funds held by the Master Servicer or the Special Servicer with respect to the Mortgage Loan, the related Mortgaged Property or any related REO Property that are not being held in respect of any real estate taxes and assessments, insurance premiums or, if applicable, ground rents; plus (iii) the amount of any letter of credit constituting additional security for the Mortgage Loan and that may be applied towards the reduction of the principal balance of the Mortgage Loan; plus (iv) the amount of any Threshold Event Collateral then held by the Servicer; and

 

(B)          from and after the Securitization Date, the meaning assigned to such term or an analogous term in the Servicing Agreement.

 

“Appraisal Review Period” shall have the meaning assigned to such term in Section 5(h)(ii).

 

“Appraisal Trigger Event” shall mean the earliest of the date on which the Mortgage Loan: (a) becomes a modified Mortgage Loan following the occurrence of a Servicing Transfer Event, (b) becomes an REO Loan, (c) with respect to which a receiver or similar official

 

 

is appointed and continues for thirty (30) days in such capacity in respect of the Mortgaged Property, (d) the Mortgage Loan Borrower becomes the subject of bankruptcy, insolvency or similar proceedings or, if such proceedings are involuntary, such proceedings remain undismissed for sixty (60) days, (e) any Monthly Payment (other than a Balloon Payment) becomes one hundred twenty (120) days or more delinquent, or (f) the Mortgage Loan Borrower fails to make when due any Balloon Payment and the Mortgage Loan Borrower does not deliver to the Master Servicer or the Special Servicer, on or before the due date of the 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 (and the Master Servicer shall promptly forward such commitment to the Special Servicer) which provides that such refinancing will occur within ninety (90) days after the date on which the Balloon Payment will become due (provided that if either such refinancing does not occur during that time or the Master Servicer is required during that time to make any P&I Advance in respect of the Mortgage Loan, an Appraisal Trigger Event will occur immediately).

 

“Appraised-Out Holder” shall have the meaning assigned to such term in Section 5(h)(i).

 

“Appraised Value” shall have the meaning assigned to such term or an analogous term in the Servicing Agreement.

 

“Asset Status Report” shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement.

 

“Balloon Payment” shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement.

 

“Bankruptcy Code” shall mean the United States Bankruptcy Code, as amended from time to time, any successor statute or rule promulgated thereto.

 

“Business Day” shall have the meaning assigned to such term in the Servicing Agreement.

 

“Certificate Administrator” shall mean the certificate administrator under the Securitization Servicing Agreement, if any.

 

“CLO” shall have the meaning assigned to such term in the definition of “Qualified Transferee.”

 

“CLO Asset Manager” shall mean, with respect to any Securitization Vehicle that is a CLO, the entity that is responsible for managing or administering a Note as an underlying asset of such Securitization Vehicle or, if applicable, as an asset of any Intervening Trust Vehicle (including, without limitation, the right to exercise any consent and control rights available to the holder of such Note).

 

“Code” shall mean the Internal Revenue Code of 1986, as amended.

 

 

 

“Collection Account” shall mean the trust account or accounts (including any sub-accounts) created and maintained by the Servicer.

 

“Condemnation Proceeds” shall have the meaning assigned to such term or any one or more analogous terms in the Servicing Agreement.

 

“Conduit” shall have the meaning assigned to such term in Section 19(g).

 

“Conduit Credit Enhancer” shall have the meaning assigned to such term in Section 19(g).

 

“Conduit Inventory Loan” shall have the meaning assigned to such term in Section 19(g).

 

“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise, and the terms “Controlling” and “Controlled” have meanings correlative to the foregoing.

 

“Control Appraisal Period” means:

 

(a)           with respect to Note B-1, a Note B-1 Control Appraisal Period; and

 

(b)           with respect to Note B-2, a Note B-2 Control Appraisal Period.

 

“Controlling Noteholder” shall mean as of the date of this Agreement, the Note B-2 Holder, and thereafter, as of any date of determination:

 

(a) if a Note B-2 Control Appraisal Period has occurred and is continuing, but a Note B-1 Control Appraisal Period has not occurred and is continuing, the Note B-1 Holder; and

 

(b) if a Note B-1 Control Appraisal Period has occurred and is continuing, the Note A Holder;

 

provided that, (i) if the Note B-2 Holder would be the Controlling Noteholder pursuant to the terms hereof, but any interest in the Note of the Note B-2 Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, or the Mortgage Loan Borrower or Mortgage Loan Borrower Related Party would otherwise be entitled to exercise the rights of the Controlling Noteholder, a Note B-2 Control Appraisal Period shall be deemed to have occurred with respect to the Note B-2 Holder and (ii) if the Note B-1 Holder would be the Controlling Noteholder pursuant to the terms hereof, but any interest in the Note of the Note B-1 Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, or the Mortgage Loan Borrower or Mortgage Loan Borrower Related Party would otherwise be entitled to exercise the rights of the Controlling Noteholder, a Note B-1 Control Appraisal Period shall be deemed to have occurred with respect to the Note B-1 Holder.

 

“Controlling Noteholder Representative” shall mean, with respect to the Mortgage Loan, the advisor appointed pursuant to Section 6(a).

 

 

“Corrected Mortgage Loan” (i) prior to the Securitization Date, shall have the meaning assigned to such term in the Model PSA or such other analogous term used in the Model PSA and (ii) from and after the Securitization Date, shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement.

 

“Credit Risk Retention Rule” shall mean Section 15G of the Exchange Act as added by Section 941 of the ▇▇▇▇-▇▇▇▇▇ Act and implemented by Regulation RR (15 U.S.C. §78o-11).

 

“Cure Period” shall have the meaning assigned to such term in Section 11(a).

 

“DBRS” shall mean DBRS, Inc., and its successors in interest.

 

“Default Interest” shall mean interest on the Mortgage Loan at a rate per annum equal to the Note Default Interest Spread.

 

“Defaulted Loan” shall have the meaning assigned to such term or an analogous term in the Servicing Agreement.

 

“Defaulted Mortgage Loan Purchase Price” shall mean, with respect to the exercise of the right to purchase any of Note A and/or Note B-1 pursuant to Section 12, the sum, without duplication, of the following amounts with respect to each such purchased Note: (a) the Note Principal Balance of the purchased Note, (b) accrued and unpaid interest on the purchased Note at the applicable Note Rate, from the date as to which interest was last paid in full on the purchased Note by Mortgage Loan Borrower up to and including the end of the interest accrual period relating to the Monthly Payment Date next following the date the purchase occurred, (c) any other amounts due under the purchased Note, other than Prepayment Premiums, default interest, late fees, exit fees and any other similar fees due with respect to the purchased Note, provided that if the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party is the purchaser, the Defaulted Mortgage Loan Purchase Price shall include Prepayment Premiums, default interest, late fees, exit fees and any other similar fees due with respect to the purchased Note, (d)  any unreimbursed property protection or servicing Advances and any expenses incurred in enforcing the Mortgage Loan Documents (including, without limitation, servicing Advances payable or reimbursable to any Servicer, and earned and unpaid special servicing fees), (e) any accrued and unpaid Advance Interest Amount, (f) (i) if the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party is the purchaser or (ii) if a Note is purchased after ninety (90) days after such option first becomes exercisable pursuant to Section 12 of this Agreement, any liquidation or workout fees payable under the Securitization Servicing Agreement and (g)  any Recovered Costs not reimbursed previously to the Servicer from collections in respect of the Mortgage Loan. If the Mortgage Loan is converted into a REO Property, for purposes of determining the Defaulted Mortgage Loan Purchase Price, interest will be deemed to continue to accrue on each purchased Note, at the applicable Note Rate on the applicable Note Principal Balances, as if the Mortgage Loan were not so converted. In no event shall the Defaulted Mortgage Loan Purchase Price include amounts due or payable to the Noteholder exercising the purchase right under this Agreement.

 

 

“Defaulted Note Purchase Date” shall have the meaning assigned to such term in Section 12.

 

“Depositor” shall mean the Person selected by the Note A Holder to create the Securitization Trust.

 

“Due Date” shall have the meaning assigned to such term or an analogous term in the Servicing Agreement.

 

“Escrow Payment” shall have the meaning assigned to such term or an analogous term in the Servicing Agreement.

 

“Event of Default” shall have the meaning assigned to such term in the Loan Agreement.

 

“Excluded Information” (i) prior to the Securitization Date, shall have the meaning assigned to such term in the Model PSA or such other analogous term used in the Model PSA and (ii) from and after the Securitization Date, shall have the meaning assigned to such term or such other analogous term used in the Servicing Agreement.

 

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

 

“Guarantor” shall have the meaning assigned to such term in the Mortgage Loan Documents.

 

“Initial Agent” shall have the meaning assigned to such term in the preamble to this Agreement.

 

“Initial Note A Holder” shall have the meaning assigned to such term in the preamble to this Agreement.

 

“Initial Note B-1 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.

 

“Initial Note B-2 Holder” shall have the meaning assigned to such term in the preamble to this Agreement.

 

“Initial Noteholders” shall mean, collectively, the Initial Note A Holder, the Initial Note B-1 Holder and the Initial Note B-2 Holder.

 

“Insolvency Proceeding” shall mean any proceeding under Title 11 of the United States Code (11 U.S.C. Sec. 101 et seq.) or any other insolvency, liquidation, reorganization or other similar proceeding concerning the Mortgage Loan Borrower, any action for the dissolution of the Mortgage Loan Borrower, any proceeding (judicial or otherwise) concerning the application of the assets of the Mortgage Loan Borrower for the benefit of its creditors, the appointment of or any proceeding seeking the appointment of a trustee, receiver or other similar custodian for all or any substantial part of the assets of the Mortgage Loan Borrower or any other action concerning the adjustment of the debts of the Mortgage Loan Borrower, the cessation of

 

 

business by the Mortgage Loan Borrower, except following a sale, transfer or other disposition of all or substantially all of the assets of the Mortgage Loan Borrower in a transaction permitted under the Mortgage Loan Documents; provided, however, that following any such permitted transaction affecting the title to the Mortgaged Property, the Mortgage Loan Borrower for purposes of this Agreement shall be defined to mean the successor owner of the Mortgaged Property from time to time as may be permitted pursuant to the Mortgage Loan Documents; provided, further, however, that for the purposes of this definition, in the event that more than one entity comprises the Mortgage Loan Borrower, the term “Mortgage Loan Borrower” shall refer to any such entity.

 

“Insurance Proceeds” shall have the meaning assigned to such term or any one or more analogous terms in the Servicing Agreement.

 

“Interest Rate” shall have the meaning assigned to the term “Interest Rate” in the Mortgage Loan Documents.

 

“Interim Servicing Agreement” shall mean at such time that the Mortgage Loan is not serviced pursuant to the Servicing Agreement, dated as of March 18, 2016, between Natixis, as owner, and ▇▇▇▇▇ Fargo Bank, National Association, as servicer; provided that, in the event that a Securitization of Note A has not occurred within sixty (60) days after the date hereof, then the Noteholders will negotiate in good faith and enter into a standalone servicing agreement reasonably acceptable to the Noteholders. The Note A Holder shall not, without the consent of the other Noteholders, consent to any amendment or modification to such Interim Servicing Agreement to the extent such amendment or modification would materially and adversely affect the Mortgage Loan or the other Noteholders’ rights with respect thereto (as reasonably determined by such Noteholders).

 

“Intervening Trust Vehicle” shall mean with respect to any Securitization Vehicle that is a CLO, a trust vehicle or entity which holds any Note as collateral securing (in whole or in part) any obligation or security held by such Securitization Vehicle as collateral for the CLO.

 

“Kroll” shall mean ▇▇▇▇▇ Bond Rating Agency, Inc., and its successor in interest.

 

“Lender” shall have the meaning assigned to such term in the Mortgage.

 

“Liquidation Proceeds” (i) prior to the Securitization Date, shall mean the amount (other than insurance proceeds, condemnation awards or amounts required to be paid to the Mortgage Loan Borrower or other Persons pursuant to the Mortgage Loan Documents or applicable law) received in connection with (y) the liquidation of a Specially Serviced Mortgage Loan through a trustee’s sale, foreclosure sale or otherwise or (z) a sale of the Mortgage Loan or an REO Property in accordance with this Agreement and (ii) from and after the Securitization Date, shall have the meaning assigned to such term in the Servicing Agreement or any one or more analogous terms in the Servicing Agreement.

 

“Loan Agreement” shall mean that certain Loan Agreement, dated as of April 12, 2018, between Natixis, as lender, and MIR Queens Place Associates, LLC, as borrower, as the same may be further amended, restated, renewed, extended, modified or supplemented from time to time, subject to the terms hereof.

 

 

“Major Decision” shall mean:

 

(i) prior to the Securitization Date:

 

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

 

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

 

(c) following a default or an event of default with respect to the Mortgage Loan, any exercise of remedies, including the acceleration of the Mortgage Loan or initiation of any proceedings, judicial or otherwise, under the Mortgage Loan Documents;

 

(d)  any sale of a Defaulted Loan or REO Property for less than the applicable Purchase Price;

 

(e) any determination to bring the Mortgaged Property or an REO Property into compliance with applicable environmental laws or to otherwise address any hazardous materials located at the Mortgaged Property or an REO Property;

 

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

 

(g)   any waiver of or determination not to enforce a “due on sale” or “due on encumbrance” clause with respect to the Mortgage Loan or any consent to such a waiver or consent to a transfer of the Mortgaged Property or direct or indirect interests in the Mortgage Loan Borrower;

 

(h)   any amendment, modification or termination of any Management Agreement (as defined in the Loan Agreement) and any property management company changes, including, without limitation, approval of the termination of the existing property manager and appointment of a new property manager, or franchise changes with respect to a Mortgage Loan, in each case for which the lender is required to consent or approve such changes under the Mortgage Loan Documents;

 

(i)  releases of any material amounts from any escrow accounts, reserve funds or letters of credit, in each case, held as performance escrows or reserves, other than those required pursuant to the specific terms of the Mortgage Loan Documents and for which there is no lender discretion;

 

(j)  any acceptance of an assumption agreement or any other agreement permitting a transfer of interests in the Mortgage Loan Borrower, Guarantor or other guarantor,

 

 

indemnitor or obligor releasing the Mortgage Loan Borrower, Guarantor or other guarantor, indemnitor or obligor from liability under the Mortgage Loan other than pursuant to the specific terms of the Mortgage Loan and for which there is no lender discretion;

 

(k)   any determination of an Acceptable Insurance Default;

 

(l)   any proposed modification or waiver of the types, nature or amount of insurance coverage required to be obtained by the Mortgage Borrower;

 

(m) the execution, termination, modification, waiver or amendment of any ground lease or any “Material Lease” (as defined in the Loan Agreement) or the granting of a subordination and non-disturbance or attornment agreement in connection with any ground lease or Material Lease, in each case to the extent Lender approval is required under the Mortgage Loan Documents;

 

(n)   any filing of a bankruptcy or similar action against the Mortgage Loan Borrower or Guarantor or the election of any action in a bankruptcy or Insolvency Proceeding to seek relief from the automatic stay or dismissal of a bankruptcy filing or voting for or opposing a plan of reorganization, seeking or opposing an order for adequate protection, adequate assurance, a Section 363 sale, order shortening time or similar motion of procedure in an Insolvency Proceeding or making an Section 1111(b)(2) election on behalf of the Noteholders;

 

(o)   any material modification, waiver or amendment of an intercreditor agreement, co-lender agreement or similar agreement with any mezzanine lender or subordinate debt holder related to the Mortgage Loan, or any action to enforce rights (or decision not to enforce rights) with respect thereto, or any material modification, waiver or amendment thereof;

 

(p)   approval of the “Annual Budget” (as defined in the Loan Agreement) to the extent the Lender’s consent is required under the Loan Agreement;

 

(q)   approval of (1) any replacement or substitution of a “Key Principal” (as defined in the Loan Agreement), and (2) any “Successor Guarantor” (as defined in the Loan Agreement);

 

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

 

(s)  approval of any replacement Special Servicer, other than under Section 7; or

 

(t)   any incurrence of additional debt by the Mortgage Loan Borrower or any mezzanine financing by any beneficial owner of the Mortgage Loan Borrower (to the extent that the lender has consent rights pursuant to the Mortgage Loan Documents (for purposes of the determination whether a lender has such consent rights pursuant to the Mortgage Loan Documents, any Mortgage Loan Document provision that requires that an

 

 

intercreditor agreement be reasonably or otherwise acceptable to the lender shall constitute such consent rights)); and

 

(ii) from and after the Securitization Date, the meaning assigned to such term or an analogous term in the Servicing Agreement.

 

“Master Servicer” shall have the meaning assigned to such term in the Servicing Agreement.

 

“Model PSA” shall mean the Pooling and Servicing Agreement for the CSAIL 2018-CX11 transaction, among Credit Suisse Commercial Mortgage Securities Corp., as depositor, LNR Partners, LLC, as general special servicer, ▇▇▇▇▇ Fargo Bank, National Association, as certificate administrator and as trustee, and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer.

 

“Monetary Default” shall have the meaning assigned to such term in Section 11(a).

 

“Monetary Default Notice” shall have the meaning assigned to such term in Section 11(a).

 

“Monthly Debt Service Payment Amount” shall have the meaning assigned to such term or an analogous term in the Loan Agreement.

 

“Monthly Payment” shall mean have the meaning assigned to such term or an analogous term in the Loan Agreement.

 

“Monthly Payment Date” shall mean the Payment Date (as defined in the Mortgage Loan Documents).

 

“Moody’s” shall mean ▇▇▇▇▇’▇ Investors Service, Inc., and its successors in interest.

 

“Morningstar” shall mean Morningstar Credit Ratings, LLC, and its successors in interest.

 

“Mortgage” shall have the meaning assigned to such term in the recitals.

 

“Mortgage Loan” shall have the meaning assigned to such term in the recitals.

 

“Mortgage Loan Borrower” shall have the meaning assigned to such term in the recitals.

 

“Mortgage Loan Borrower Related Party” (i) prior to the Securitization Date, shall have the meaning assigned to such term in the Model PSA or such other analogous term used in the Model PSA and (ii) from and after the Securitization Date, shall have the meaning assigned to such term in the Servicing Agreement.

 

 

“Mortgage Loan Documents” shall mean the Mortgage, the Notes, the Loan Agreement and all other documents now or hereafter evidencing, securing or guaranteeing the Mortgage Loan.

 

“Mortgage Loan Rate” shall mean, as of any date of determination, the weighted average of the Note A Rate, the Note B-1 Rate and the Note B-2 Rate.

 

“Mortgage Loan Schedule” shall mean the Schedule attached hereto as Exhibit A, which schedule sets forth certain information regarding the Mortgage Loan and the Notes.

 

“Mortgaged Property” shall have the meaning assigned to such term in the recitals.

 

“Natixis” shall mean Natixis Real Estate Capital LLC, and its successors in interest.

 

“Net Note A Rate” shall mean the Note A Rate minus the Servicing Fee Rate.

 

“Net Note B-1 Rate” shall mean the Note B-1 Rate minus the Servicing Fee Rate.

 

“Net Note B-2 Rate” shall mean the Note B-2 Rate minus the Servicing Fee Rate.

 

“New Notes” shall have the meaning assigned to such term in Section 40.

 

“Non-Exempt Person” shall mean any Person other than a Person who is either (i) a U.S. Person or (ii) has on file with the Agent for the relevant year such duly-executed form(s) or statement(s) which may, from time to time, be prescribed by law and which, pursuant to applicable provisions of (A) any income tax treaty between the United States and the country of residence of such Person, (B) the Code or (C) any applicable rules or regulations in effect under clauses (A) or (B) above, permit Note A Holder to make such payments free of any obligation or liability for withholding.

 

“Non-Monetary Default” shall have the meaning assigned to such term in Section 11(d).

 

“Non-Monetary Default Cure Period” shall have the meaning assigned to such term in Section 11(d).

 

“Non-Monetary Default Notice” shall have the meaning assigned to such term in Section 11(d).

 

“Note” shall mean any of Note A, Note B-1 and Note B-2, as applicable.

 

“Note A” shall have the meaning assigned to such term in the recitals.

 

“Note A Default Rate” shall mean a rate per annum equal to the Note A Rate plus the Note Default Interest Spread.

 

 

“Note A Holder” shall mean the Initial Note A Holder, or any subsequent holder of Note A, together with its successors and assigns.

 

“Note A Percentage Interest” shall mean a fraction, expressed as a percentage, the numerator of which is the Note A Principal Balance and the denominator of which is the sum of the Note A Principal Balance, the Note B-1 Principal Balance and the Note B-2 Principal Balance.

 

“Note A Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the initial Note A Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon received by the Note A Holder or reductions in such amount pursuant to Section 3, 4 or 5, as applicable.

 

“Note A Rate” shall mean the Note A Rate set forth on the Mortgage Loan Schedule.

 

“Note A Relative Spread” shall mean the ratio of the Note A Rate to the Mortgage Loan Rate.

 

“Note B-1” shall have the meaning assigned to such term in the recitals.

 

“Note B-1 Control Appraisal Period” means any period, with respect to the Mortgage Loan, if and for so long as:

 

(a)           (1) the initial Note B-1 Principal Balance minus (2) the sum (without duplication) of (x) any payments of principal (whether as principal prepayments or otherwise) allocated to, and received on, Note B-1 after the date of creation of Note B-1, (y) any Appraisal Reduction Amount for the Mortgage Loan that is allocated to Note B-1 and (z) any losses realized with respect to any Mortgaged Property or the Mortgage Loan that are allocated to Note B-1, plus (3) the Threshold Event Collateral then held by the Servicer, is less than

 

(b)           twenty-five percent (25%) of the remainder of the (i) initial Note B-1 Principal Balance less (ii) any payments of principal (whether as principal prepayments or otherwise) allocated to, and received by, the Note B-1 Holder on Note B-1 after the date of creation of Note B-1.

 

“Note B-1 Default Rate” shall mean a rate per annum equal to the Note B-1 Rate plus the Note Default Interest Spread.

 

“Note B-1 Holder” shall mean the Initial Note B-1 Holder, and its successors in interest, or any subsequent holder of Note B-1.

 

“Note B-1 Percentage Interest” shall mean a fraction, expressed as a percentage, the numerator of which is the Note B-1 Principal Balance and the denominator of which is the sum of Note A Principal Balance, the Note B-1 Principal Balance and the Note B-2 Principal Balance.

 

 

 

“Note B-1 Principal Balance” shall mean, at any time of determination, the initial Note B-1 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon or reductions in such amount pursuant to Section 3, 4 or 5, as applicable.

 

“Note B-1 Rate” shall mean the Note B-1 Rate set forth on the Mortgage Loan Schedule.

 

“Note B-1 Relative Spread” shall mean the ratio of the Note B-1 Rate to the Mortgage Loan Rate.

 

“Note B-2” shall have the meaning assigned to such term in the recitals.

 

“Note B-2 Control Appraisal Period” means any period, with respect to the Mortgage Loan, if and for so long as:

 

(a)           (1) the initial Note B-2 Principal Balance minus (2) the sum (without duplication) of (x) any payments of principal (whether as principal prepayments or otherwise) allocated to, and received on, Note B-2 after the date of creation of Note B-2, (y) any Appraisal Reduction Amount for the Mortgage Loan that is allocated to Note B-2 and (z) any losses realized with respect to any Mortgaged Property or the Mortgage Loan that are allocated to Note B-2, plus (3) the Threshold Event Collateral then held by the Servicer, is less than

 

(b)           twenty-five percent (25%) of the remainder of the (i) initial Note B-2 Principal Balance less (ii) any payments of principal (whether as principal prepayments or otherwise) allocated to, and received by, the Note B-2 Holder on Note B-2 after the date of creation of Note B-2.

 

“Note B-2 Default Rate” shall mean a rate per annum equal to the Note B-2 Rate plus the Note Default Interest Spread.

 

“Note B-2 Holder” shall mean the Initial Note B-2 Holder, or any subsequent holder of Note A, together with its successors and assigns.

 

“Note B-2 Percentage Interest” shall mean a fraction, expressed as a percentage, the numerator of which is the Note B-2 Principal Balance and the denominator of which is the sum of the Note A Principal Balance, the Note B-1 Principal Balance and the Note B-2 Principal Balance.

 

“Note B-2 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the initial Note B-2 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon or reductions in such amount pursuant to Section 3, 4 or 5, as applicable.

 

“Note B-2 Rate” shall mean the Note B-2 Rate set forth on the Mortgage Loan Schedule.

 

 

“Note B-2 Relative Spread” shall mean the ratio of the Note B-2 Rate to the Mortgage Loan Rate.

 

“Note Default Interest Spread” shall mean a rate per annum equal to five percent (5%); provided, however, that if the weighted average of the Note A Default Rate, the Note B-1 Default Rate and the Note B-2 Default Rate would exceed the maximum rate permitted by applicable law, the note default interest spread shall equal (i) the rate at which the weighted average of the Note A Default Rate, the Note B-1 Default Rate and the Note B-2 Default Rate equals the maximum rate permitted by applicable law minus (ii) the Interest Rate.

 

“Note Pledgee” shall have the meaning assigned to such term in Section 19(h).

 

“Note Rate” shall mean any of the Note A Rate, the Note B-1 Rate and the Note B-2 Rate, as applicable.

 

“Note Register” shall have the meaning assigned to such term in Section 21.

 

“Noteholder” shall mean any of the Note A Holder, the Note B-1 Holder and the Note B-2 Holder, as applicable.

 

“Noteholder Purchase Notice” has the meaning assigned to such term in Section 12.

 

“Original Entity” shall have the meaning assigned to such term in Section 41.

 

“Owned Note” shall have the meaning assigned to such term in Section 41.

 

“P&I Advance” shall have the meaning assigned to such term or an analogous term in the Servicing Agreement.

 

“Percentage Interest” shall mean, (i) with respect to the Note A Holder, the Note A Percentage Interest, (ii) with respect to the Note B-1 Holder, the Note B-1 Percentage Interest and (iii) with respect to the Note B-2 Holder, the Note B-2 Percentage Interest, as each may be adjusted from time to time.

 

“Permitted Fund Manager” shall mean any Person that on the date of determination is (i) one of the entities on Exhibit C attached hereto and made a part hereof or any other nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $100,000,000 and (iii) not subject to a proceeding relating to the bankruptcy, insolvency, reorganization or relief of debtors.

 

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

 

“Pledge” shall have the meaning assigned to such term in Section 19(h).

 

 

“Prepayment Premium” shall mean, with respect to the Mortgage Loan, any prepayment premium, spread maintenance premium, yield maintenance premium or similar fee required to be paid in connection with a prepayment of the Mortgage Loan pursuant to the Mortgage Loan Documents, including any exit fee.

 

“Principal Balance” shall mean any of the Note A Principal Balance, the Note B-1 Principal Balance and the Note B-2 Principal Balance, as applicable.

 

“Purchase Price” shall have the meaning assigned to such term or an analogous term in the Servicing Agreement.

 

“Qualified Transferee” shall mean each of:

 

(a) the Initial Noteholders;

 

(b) any other Person that is an entity Controlled (as defined below) by, under common Control with or Controlling of any of the Initial Noteholders; or

 

(c) one or more of the following:

 

(i)       a real estate investment bank, an insurance company, bank, savings and loan association, investment bank, trust company, commercial credit corporation, pension plan, pension fund, pension fund advisory firm, mutual fund, real estate investment trust, governmental entity or plan, or

 

(ii)      an investment company, money management firm or a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended, or

 

(iii)     a Qualified Trustee (or in the case of a CLO, a single purpose bankruptcy remote entity that contemporaneously assigns or pledges the Note, or a participation interest therein (or any portion thereof) to a Qualified Trustee) in connection with (a) a securitization of, (b) the creation of collateralized debt obligations (“CLO”) secured by, or (c) a financing through an “owner trust” of, a Note or any interest therein (any of the foregoing, a “Securitization Vehicle”), provided that (1) one or more classes of securities issued by such Securitization Vehicle is initially rated at least investment grade by two nationally recognized credit rating agencies; (2) the special servicer of such Securitization Vehicle has a Required Special Servicer Rating or is otherwise acceptable to the Rating Agencies rating each Securitization (such entity, an “Approved Servicer”) and such Approved Servicer is required to service and administer such Note or any interest therein in accordance with servicing arrangements for the assets held by the Securitization Vehicle which require that such Approved Servicer act in accordance with a servicing standard notwithstanding any contrary direction or instruction from any other Person; or (3) in the case of a Securitization Vehicle that is a CLO, the CLO Asset Manager and, if applicable, each Intervening Trust

 

 

Vehicle that is not administered and managed by a CLO Asset Manager that is a Qualified Transferee, are each a Qualified Transferee under clauses (i), (ii), (iv) or (v) of this definition, or

 

(iv)     an investment fund, limited liability company, limited partnership or general partnership having capital and/or capital commitments of at least $100,000,000, in which (A) any Initial Noteholder, (B) a person that is otherwise a Qualified Transferee under clause (i), (ii) or (v) (with respect to an institution substantially similar to the entities referred to in clause (i) or (ii) above) or clause (c) below (with respect to an entity Controlled by an entity referred to in clause (i),(ii) or (v) (with respect to an institution substantially similar to the entities referred to in clause (i) or (ii) above)), or (C) a Permitted Fund Manager, acts as a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such investment vehicle, or

 

(v)      an institution substantially similar to any of the foregoing, or

 

(vi)     any Person that is otherwise a Qualified Transferee but is acting in an agency capacity in connection with a lending syndicate, so long as more than fifty percent (50%) of the lenders in the lending syndicate (by loan balance or committed loan amounts) are Qualified Transferees; or

 

(vii)    a private trust established and authorized under the laws of Korea (an “Acquiring Korean Trust”), so long as the beneficiaries of, and owners of not less than 51% of the equity interest in, the Acquiring Korean Trust are, directly or indirectly, Persons that are otherwise Qualified Transferees and satisfy the capital surplus/equity and total asset requirements set forth below, and

 

in the case of any entity referred to in clause (c)(i), (ii), (iv)(B) or (v) of this definition, (x) such entity or parent has at least $100,000,000 in capital/statutory surplus or shareholders’ equity including uncalled capital commitments (except with respect to a pension advisory firm, asset manager or similar fiduciary) and at least $250,000,000 in total assets including uncalled capital commitments (in name or under management), and (y) is regularly engaged in the business of making or owning commercial real estate loans (or interests therein) similar to the Mortgage Loan (or mezzanine loans with respect thereto) or owning or operating commercial real estate properties; provided that, in the case of the entity described in clause (iv)(B) above, the requirements of this clause (y) may be satisfied by a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such entity; or

 

(d) any entity Controlled by, under common Control with or Controlling, any of the entities described in clause (c) above or approved by the Rating Agencies hereunder as a Qualified Transferee for purposes of this Agreement, or as to which the Rating Agencies have stated they would not review such entity in connection with the subject transfer; and

 

For purposes of this definition only, “Control” means the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests

 

 

of an entity and the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise (“Controlled” has the meaning correlative thereto). For purposes of this definition, if more than one Qualified Transferee owns, (directly or indirectly) in the aggregate more than fifty percent (50%) of the beneficial ownership interests of an entity and one or more of the Qualified Transferees possess the power to direct or cause the direction of the management or policies of the entity, whether through the ability to exercise voting power, by contract or otherwise, even though each such Qualified Transferee individually owns less than fifty percent (50%) of such beneficial interests, such entity shall be deemed to be “Controlled by” a Qualified Transferee.

 

“Qualified Trustee” shall mean (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, having a combined capital and surplus of at least $100,000,000 and subject to supervision or examination by federal or state authority, (ii) an institution insured by the Federal Deposit Insurance Corporation or (iii) an institution whose long-term senior unsecured debt is then rated in one of the top two rating categories of each of the applicable Rating Agencies.

 

“Rating Agencies” shall mean any of (a) S&P, (b) ▇▇▇▇▇’▇, (c) Fitch, (d) DBRS, (e) Kroll and (f) Morningstar or, if any of such entities shall for any reason no longer perform the functions of a securities rating agency, any other nationally recognized statistical rating agency designated by the Note A Holder; provided, however, that at any time during which Note A or Note B-1 is an asset of a Securitization, “Rating Agencies” or “Rating Agency” shall have the meaning assigned to such term in the Servicing Agreement.

 

“Rating Agency Confirmation” shall mean (i) prior to a Securitization with respect to any matter, confirmation in writing (which may be in electronic form) by each applicable Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then-current rating assigned to any class of certificates (if then rated by the Rating Agency); provided that a written waiver or other acknowledgment from the Rating Agency indicating its decision not to review the matter for which the Rating Agency Confirmation is sought shall be deemed to satisfy the requirement for the Rating Agency Confirmation from each Rating Agency with respect to such matter and (ii) after a Securitization, the meaning given thereto or any analogous term in the Securitization Servicing Agreement including any deemed Rating Agency Confirmation and, after a Securitization of Note B-1, also a Rating Agency Conformation as defined in the document governing the related Securitization Trust.

 

“Recovered Costs” shall mean any amounts referred to in clauses (d) and/or (e) of the definition of “Defaulted Mortgage Loan Purchase Price” that, at the time of determination, had been previously paid or reimbursed to any Servicer from sources other than collections on or in respect of the Mortgage Loan or the Mortgaged Property (including, without limitation, from collections on or in respect of loans other than the Mortgage Loan).

 

 

“Redirection Notice” shall have the meaning assigned to such term in Section 19(h).

 

“Relative Spread” shall mean the Note A Relative Spread, the Note B-1 Relative Spread or the Note B-2 Relative Spread, as the context may require.

 

“REMIC” shall mean a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code.

 

“REMIC Provisions” shall mean 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 regulations (including any applicable proposed regulations) and rulings promulgated thereunder, as the foregoing may be in effect from time to time.

 

“REO Loan” shall have the meaning assigned to such term or an analogous term in the Servicing Agreement.

 

“REO Property” shall mean any Mortgaged Property, title to which has been acquired by the Servicer on behalf of the Noteholders through foreclosure, deed in lieu of foreclosure or otherwise.

 

“Required Special Servicer Rating” shall mean (i) a rating of “CSS3” in the case of Fitch, (ii) being on S&P’s Select Servicer List as a U.S. Commercial Mortgage Special Servicer in the case of S&P, (iii) in the case of ▇▇▇▇▇’▇ such special servicer is acting as special servicer for one or more loans included in a commercial mortgage loan securitization that was rated by ▇▇▇▇▇’▇ within the twelve (12) month period prior to the date of determination, and ▇▇▇▇▇’▇ has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch publicly citing the continuation of such special servicer as special servicer of such commercial mortgage loans as the sole or material factor in such ratings action and (iv) in the case of Morningstar, either (a) the applicable replacement has a special servicer ranking of at least “MOR CS3” by Morningstar (if ranked by Morningstar) or (b) if not ranked by Morningstar, is currently acting as a special servicer on a deal or transaction-level basis for all or a significant portion of the related mortgage loans in other CMBS transactions rated by any of S&P, Moody’s, Morningstar, Fitch, DBRS or KBRA and the trustee does not have actual knowledge that Morningstar has, and the replacement special servicer certifies that Morningstar has not, with respect to any such other CMBS transaction, qualified, downgraded or withdrawn its rating or ratings on one or more classes of such CMBS transaction citing servicing concerns of the applicable replacement as the sole or material factor in such rating action.

 

“S&P” shall mean S&P Global Ratings, and its successors in interest.

 

“Securitization” shall mean one or more sales by the Note A Holder or Note B-1 Holder of Note A or Note B-1 to a Depositor, who will in turn include such Notes as part of a securitization of one or more mortgage loans.

 

 

“Securitization Date” shall mean the effective date on which a Securitization of Note A is consummated.

 

“Securitization Operating Advisor” shall mean the operating advisor under the Securitization Servicing Agreement, if any.

 

“Securitization Servicing Agreement” shall mean a pooling and servicing agreement, substantially in the form of the Model PSA (and where such pooling and servicing agreement is not substantially the same as the Model PSA, and the changes would materially and adversely affect the Mortgage Loan or the Note B-1 Holder’s or the Note B-2 Holder’s rights with respect thereto (as reasonably determined by the Note B-1 Holder or the Note B-2 Holder), the changes are reasonably acceptable to the Note B-1 Holder and the Note B-2 Holder), to be entered into in connection with the Securitization, by and among (a) the Trustee, (b) the Person who serves as master servicer from and after the Securitization Date, (c) the Person which serves as special servicer from and after the Securitization Date, (d) the Person who services as operating advisor from and after the Securitization Date and (e) the Depositor, and any other additional Persons that may be party to such pooling and servicing agreement; provided it is acknowledged that such agreement is subject in all respects to changes (i) required by the Code relating to the tax elections of the related Securitization Trust, (ii) required by law or changes in any law, rule or regulation and (iii) requested by the Rating Agencies or any purchaser of subordinate certificates. The Servicing Standard in the Securitization Servicing Agreement shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Noteholder (taking into account that Note B-2 is junior to Note B-1).

 

“Securitization Trust” shall mean a trust formed pursuant to a Securitization.

 

“Securitization Vehicle” shall have the meaning assigned to such term in the definition of “Qualified Transferee.”

 

“Sequential Pay Event” shall mean any Event of Default with respect to an obligation to pay money due under the Mortgage Loan or any other Event of Default which causes the Mortgage Loan to become a Specially Serviced Mortgage Loan (other than as a result of a foreseeable event), or any bankruptcy or insolvency event that constitutes an Event of Default. A Sequential Pay Event shall no longer exist to the extent it has been cured (including any cure payment made by the Controlling Noteholder in accordance with Section 11) and shall not be deemed to exist to the extent a Noteholder is exercising its cure rights under Section 11.

 

“Servicer” shall mean the Master Servicer or the Special Servicer, as the context may require.

 

“Servicer Termination Event” (i) prior to the Securitization Date, shall have the meaning assigned to such term in the Model PSA or such other analogous term used in the Model PSA and (ii) from and after the Securitization Date, shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement.

 

 

“Servicing Agreement” shall mean, with respect to the Mortgage Loan, prior to the Securitization Date, the Interim Servicing Agreement, and, from and after the Securitization Date, the Securitization Servicing Agreement.

 

“Servicing Fee Rate” shall have the meaning assigned to such term in the Servicing Agreement; provided that the Servicing Fee Rate attributable to Note B-2 shall not exceed one basis point (0.01%) per annum.

 

“Servicing Standard” (i) prior to the Securitization Date, shall refer to the procedures that the Master Servicer, as an independent contractor, follows in order to service and administer the Mortgage Loan and administer REO Property solely on behalf of the Noteholders (as a collective whole as if such Noteholders constituted one lender, it being understood that Note B-2 is subordinate to Note B-1 and Note B-1 is subordinate to Note A, subject to the terms and conditions of this Agreement) (as determined by the Master Servicer in the exercise of its good faith and reasonable judgment), in accordance with applicable law, the terms of this Agreement and the Mortgage Loan Documents and, to the extent consistent with the foregoing, the following standards: (i) the higher of (a) the same manner in which and with the same care, skill, prudence and diligence with which the Master Servicer services and administers similar loans and administers foreclosed properties for other third-party portfolios, giving due consideration to customary and usual standards of practice of prudent institutional commercial mortgage lenders in servicing their own loans and administering their own foreclosed properties, or (b) with the care, skill, prudence and diligence the Master Servicer uses for loans which it owns or for foreclosed properties it owns and administers; (ii) with a view to the timely collection of (a) all scheduled payments of principal and interest under the Mortgage Loan or, if the Mortgage Loan comes into and continues in default and if no satisfactory arrangements can be made for the collection of the delinquent payments, the maximization of the recovery on the Mortgage Loan to the Noteholders (as a collective whole as if such Noteholders constitute a single lender, it being understood that Note B-2 is subordinate to Note B-1 and Note B-1 is subordinate to Note A, subject to the terms of this Agreement) on a net present value basis and (b) any reimbursable expenses and other amounts due under the Mortgage Loan and (iii) without regard to:

 

(A)          any relationship that the Master Servicer or its affiliates may have with the Mortgage Loan Borrower or any of its affiliates;

 

(B)           the ownership of any other mezzanine loan by the Master Servicer or its affiliates;

 

(C)           its obligation to make Advances;

 

(D)

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

 

(E)           the ownership, servicing or management for others of any other loans or property by the Master Servicer; and

 

 

 

(ii) from and after the Securitization Date shall have the meaning assigned to such term in the Servicing Agreement.

 

“Servicing Transfer Event” (i) prior to the Securitization Date, shall have the meaning assigned to such term in the Model PSA or such other analogous term used in the Model PSA and (ii) from and after the Securitization Date, shall have the meaning assigned to such term in the Servicing Agreement or such other analogous term used in the Servicing Agreement, except that, as provided in Section 11(a)(iii), a Servicing Transfer Event shall be deemed not to have occurred for so long as a Noteholder is exercising its cure right hereunder.

 

“Special Servicer” shall have the meaning assigned to such term in the Servicing Agreement.

 

“Specially Serviced Mortgage Loan” shall have the meaning assigned to such term or an analogous term in the Servicing Agreement.

 

“Taxes” shall mean any income or other taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature, now or hereafter imposed by any jurisdiction or by any department, agency, state or other political subdivision thereof or therein.

 

“Threshold Event Collateral” shall have the meaning assigned to such term in Section 5(i).

 

“Threshold Event Cure” shall have the meaning assigned to such term in Section 5(i).

 

“Transfer” shall mean any sale, assignment, transfer, pledge, syndication, participation, hypothecation, contribution, encumbrance or other disposition (either (i) directly or (ii) indirectly through entering into a derivatives contract or any other similar agreement, excluding a repo financing or a Pledge in accordance with Section 19(h)).

 

“Trustee” shall mean the bank or trust company as may be selected by the Depositor and approved by the Rating Agencies to act as trustee for the Securitization, and shall include any fiscal agent and/or paying agent appointed for such Securitization.

 

“Unliquidated Advances” shall have the meaning assigned to such term or an analogous term in the Servicing Agreement.

 

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

 

 

“Workout” shall mean any written modification, waiver, amendment or restructuring relating to a workout of the Mortgage Loan or the Note in connection with a Mortgage Loan default or a likely default.

 

Section 2.           Servicing.

 

(a)           Each Noteholder acknowledges and agrees that, subject in each case to this Agreement, the Mortgage Loan shall be serviced prior to the Securitization Date pursuant to the Interim Servicing Agreement and from and after the Securitization Date (except as otherwise set forth in Section 2(e)), pursuant to the Securitization Servicing Agreement and, in each case, in accordance with this Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of the Notes other than Note A if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to advance delinquent real estate taxes, insurance premiums and other expenses related to the maintenance of the Mortgaged Property and maintenance and enforcement of the lien of the Mortgage thereon, subject to the terms of the Securitization Servicing Agreement. Each Noteholder acknowledges that the Note A Holder and the Note B-1 Holder may elect, in its sole discretion, to include its Note in a Securitization and agrees that it will reasonably cooperate with a securitizing Noteholder, at the securitizing Noteholder’s expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Noteholder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer and the Trustee under the Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with and consent with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with the Securitization Servicing Agreement and this Agreement. Each Noteholder hereby appoints the Master Servicer and the Trustee in the Securitization as such Noteholder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Securitization Servicing Agreement (subject at all times to the rights of such Noteholder set forth herein and in the Servicing Agreement). In no event shall the Servicing Agreement require the Servicer to enforce the rights of any Noteholder against any other Noteholder or limit the Servicer in enforcing the rights of one Noteholder against the other Noteholder; however, this statement shall not be construed to otherwise limit the rights of one Noteholder with respect to any other Noteholder.

 

(b)           The Controlling Noteholder (or any Controlling Noteholder Representative appointed by it acting on its behalf) shall exercise the rights and powers granted to the “Controlling Holder”, “Directing Certificateholder” or “Directing Holder” (or similar term) under the Servicing Agreement with respect to the Mortgage Loan.

 

(c)           The Securitization Servicing Agreement shall contain the Servicing Standard (which shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Noteholder, taking into account that (1) Note B-2 is junior to Note B-1 and (2) Note B-1 is junior to Note A). In no event may the Securitization Servicing Agreement change the interest or principal allocable to, or the amount of any payments due to, the Note B-1 Holder or the Note B-2 Holder or materially increase the Note B-1 Holder’s or the Note B-2 Holder’s obligations or materially decrease the Note B-1 Holder’s or the Note B-2 Holder’s rights, remedies or protections hereunder.

 

 

(d)       The Securitization Servicing Agreement shall contain provisions to the effect that:

 

(i)        any payments received on the Mortgage Loan shall be paid by the Master Servicer to each of the Noteholders in accordance with Sections 3 and 4 hereof on the “master servicer remittance date” under the Securitization Servicing Agreement;

 

(ii)       each of the Note B-1 Holder and the Note B-2 Holder shall be entitled to receive, and the Master Servicer and the Special Servicer shall provide, any information relating to the Mortgage Loan, the borrower or the Mortgaged Property as either the Note B-1 Holder or the Note B-2 Holder may reasonably request and would be customarily in the possession of, or collected or known by, the Master Servicer or Special Servicer of mortgage loans similar to the Mortgage Loan and, in any event, all information that is required to be provided to holders of the securities issued by the Securitization Trust that includes other Notes including but not limited to standard CREFC^® reports, provided that if an interest in Note B-1 or Note B-2 or the Note B-1 Holder or the Note B-2 Holder is held by the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, then such Noteholder shall not be entitled to receive any Excluded Information;

 

(iii)      each Noteholder is an intended third party beneficiary in respect of the rights afforded it under the Securitization Servicing Agreement and may directly enforce such rights; and

 

(iv)      the Securitization Servicing Agreement may not be amended without the consent of the Note B-1 Holder or the Note B-2 Holder if such amendment would materially and adversely affect the Mortgage Loan or the rights of the Note B-1 Holder or the Note B-2 Holder, as applicable, with respect thereto (as determined by the Note B-1 Holder or Note B-2 Holder, as applicable).

 

(e)        Any obligation of the Servicer pursuant to the terms hereof shall be performed by the Master Servicer or the Special Servicer, as applicable, as set forth in the Servicing Agreement.

 

(f)        At any time after the Securitization Date that none of Note A and Note B-1 is no longer subject to the provisions of the Securitization Servicing Agreement, the Note A Holder shall cause the Mortgage Loan to be serviced pursuant to a servicing agreement mutually agreeable to the Note A Holder, the Note B-1 Holder and the Note B-2 Holder that contains servicing provisions which are the same as or more favorable to Note B-1 Holder and Note B-2 Holder, as applicable, in substance, to those in the Securitization Servicing Agreement and all references herein to the “Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, however, that until a replacement servicing agreement has been entered into, the Note A Holder shall cause the Mortgage Loan to be serviced in accordance with the servicing provisions set forth in the Securitization Servicing Agreement as if such agreement was still in full force and effect with respect to the Mortgage Loan; provided, further, however, that until a replacement servicing agreement is in place, the actual servicing of the Mortgage Loan may be performed by any nationally recognized commercial mortgage loan servicer appointed by the Note A Holder with the consent of the Note B-1 Holder and the Note B-2

 

 

Holder and does not have to be performed by the service providers set forth under the Securitization Servicing Agreement.

 

Section 3.     Payments Prior to a Sequential Pay Event. Note B-2 and the right of the Note B-2 Holder to receive payments of interest, principal and other amounts with respect to the Note B-2 shall at all times be junior, subject and subordinate to Note B-1 and the right of the Note B-1 Holder to receive payments of interest, principal and other amounts with respect to Note B-1 as set forth herein and the rights of the Note B-1 Holder to receive payments of interest, principal and other amounts with respect to Note B-1, shall at all times be junior, subject and subordinate to Note A and the right of the Note A Holder to receive payments of interest, principal and other amounts with respect to such Note A, in each case, as further described below. If no Sequential Pay Event, as determined by the applicable Servicer, shall have occurred and be continuing, all amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof, whether received in the form of Monthly Payments, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan or Insurance Proceeds or Condemnation Proceeds (other than proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents, to the extent permitted by the REMIC Provisions), but excluding (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents (to the extent, in accordance with the terms of the Mortgage Loan Documents) to be held as reserves or escrows or received as reimbursements on account of recoveries in respect of Advances then due and payable or reimbursable to the Servicer under the Servicing Agreement and (y) all amounts that are then due, payable or reimbursable to any Servicer, Securitization Operating Advisor, Certificate Administrator or Trustee with respect to the Mortgage Loan pursuant to the Servicing Agreement, shall be applied by the Note A Holder (or its designee) and distributed by the Note A Holder (or the Servicer on its behalf) for payment in the following order of priority without duplication (and payments shall be made at such times as are set forth in the Servicing Agreement):

 

(a)       first, to the Note A Holder in an amount equal to the accrued and unpaid interest on the Note A Principal Balance at the Net Note A Rate;

 

(b)       second, to the Note A Holder in an amount equal to the Note A Percentage Interest of principal payments (including all prepayment proceeds relating to casualty or condemnation) received, if any, with respect to such Monthly Payment Date with respect to the Mortgage Loan (including any Monthly Debt Service Payment Amount);

 

(c)       third, to the Note A Holder up to the amount of any unreimbursed costs and expenses paid by the Note A Holder and not previously reimbursed to the Note A Holder pursuant to this Agreement or the Servicing Agreement;

 

(d)       fourth, if the proceeds of any foreclosure sale or any liquidation of a Mortgage Loan or Mortgaged Property exceed the amounts required to be applied in accordance with the foregoing clauses (a)-(c) and, as a result of a Workout the Note A Principal Balance has been reduced, such excess amount shall be paid first, to the Note A Holder in an amount up to

 

 

the reduction, if any, of the Note A Principal Balance as a result of such Workout, plus interest on such amount at the Note A Rate;

 

(e)       fifth, to the Note B-1 Holder in an amount equal to the accrued and unpaid interest on the Note B-1 Principal Balance at the Net Note B-1 Rate;

 

(f)        sixth, to the Note B-1 Holder in an amount equal to the Note B-1 Percentage Interest of principal payments (including all prepayment proceeds relating to casualty or condemnation) received, if any, with respect to such Monthly Payment Date with respect to the Mortgage Loan (including any Monthly Debt Service Payment Amount);

 

(g)       seventh, to the extent the Note B-1 Holder has made any payments or advances to cure defaults pursuant to Section 11, to reimburse the Note B-1 Holder for all such cure payments;

 

(h)       eighth, to the Note B-1 Holder up to the amount of any unreimbursed costs and expenses paid by the Note B-1 Holder and not previously reimbursed to the Note B-1 Holder pursuant to this Agreement or the Servicing Agreement;

 

(i)        ninth, if the proceeds of any foreclosure sale or any liquidation of a Mortgage Loan or Mortgaged Property exceed the amounts required to be applied in accordance with the foregoing clauses (a)-(h) and, as a result of a Workout the Note B-1 Principal Balance has been reduced, such excess amount shall be paid first, to the Note B-1 Holder in an amount up to the reduction, if any, of the Note B-1 Principal Balance as a result of such Workout, plus interest on such amount at the Note B-1 Rate;

 

(j)        tenth, to the Note B-2 Holder in an amount equal to the accrued and unpaid interest on the Note B-2 Principal Balance at the Net Note B-2 Rate;

 

(k)       eleventh, to the Note B-2 Holder in an amount equal to the Note B-2 Percentage Interest of principal payments (including all prepayment proceeds relating to casualty or condemnation) received, if any, with respect to such Monthly Payment Date with respect to the Mortgage Loan (including any Monthly Debt Service Payment Amount);

 

(l)        twelfth, to the extent the Note B-2 Holder has made any payments or advances to cure defaults pursuant to Section 11, to reimburse the Note B-2 Holder for all such cure payments;

 

(m)      thirteenth, to the Note B-2 Holder up to the amount of any unreimbursed costs and expenses paid by the Note B-2 Holder and not previously reimbursed to the Note B-2 Holder pursuant to this Agreement or the Servicing Agreement;

 

(n)       fourteenth, if the proceeds of any foreclosure sale or any liquidation of a Mortgage Loan or Mortgaged Property exceed the amounts required to be applied in accordance with the foregoing clauses (a)-(m) and, as a result of a Workout the Note B-2 Principal Balance has been reduced, such excess amount shall be paid first, to the Note B-2 Holder in an amount up to the reduction, if any, of the Note B-2 Principal Balance as a result of such Workout, plus interest on such amount at the Note B-2 Rate;

 

 

(o)       fifteenth, any Prepayment Premium, to the extent paid by the Mortgage Loan Borrower, shall be paid to the Note A Holder in an amount up to its pro rata interest therein, based on the product of the Note A Percentage Interests multiplied by its Relative Spread;

 

(p)       sixteenth, any Prepayment Premium, to the extent paid by the Mortgage Loan Borrower, shall be paid to the Note B-1 Holder in an amount up to its pro rata interest therein, based on the product of the Note B-1 Percentage Interests multiplied by its Relative Spread;

 

(q)       seventeenth, any Prepayment Premium, to the extent paid by the Mortgage Loan Borrower, shall be paid to the Note B-2 Holder in an amount up to its pro rata interest therein, based on the product of the Note B-2 Percentage Interests multiplied by its Relative Spread;

 

(r)        eighteenth, to the extent default interest, late fees, assumption or transfer fees actually paid by the Mortgage Loan Borrower are not required to be otherwise applied under the Servicing Agreement, including, without limitation, to compensate a Servicer under the Servicing Agreement, any such default interest, late fees, assumption or transfer fees, to the extent actually paid by the Mortgage Loan Borrower, shall be paid to the Noteholders, pro rata, based on their respective Percentage Interests; and

 

(s)        nineteenth, if any excess amount is available to be distributed in respect of the Mortgage Loan, and not otherwise applied in accordance with the foregoing clauses (a)-(r), any remaining amount shall be paid pro rata to each Noteholder in accordance with their respective initial Percentage Interests.

 

Section 4.     Payments Following a Sequential Pay Event. Payments of interest and principal shall be made to the Noteholders in accordance with Section 3 of this Agreement; except, if a Sequential Pay Event, as determined by the applicable Servicer in accordance with this Agreement and the Servicing Agreement, shall have occurred and be continuing, all amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof, whether received in the form of Monthly Payments, any proceeds from the sale or distribution of any REO Property, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan or Insurance Proceeds or Condemnation Proceeds (other than proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents, to the extent permitted by the REMIC Provisions), but excluding (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents to continue to be held as reserves or escrows or received as reimbursements on account of recoveries in respect of Advances then due and payable or reimbursable to the Servicer under Servicing Agreement and (y) all amounts that are then due, payable or reimbursable to any Servicer, Securitization Operating Advisor, Certificate Administrator or Trustee with respect to this Mortgage Loan pursuant to the Servicing Agreement with respect to the Mortgage Loan, shall be distributed by the Servicer in the

 

 

following order of priority without duplication (and payments shall be made at such times as are set forth in the Servicing Agreement):

 

(a)       first, to the Note A Holder in an amount equal to the accrued and unpaid interest on the Note A Principal Balance at the Net Note A Rate;

 

(b)       second, to the Note A Holder in an amount equal to all principal payments (or other amounts allocated to principal) received, if any with respect to the related Monthly Payment Date, until the Note A Principal Balance has been reduced to zero;

 

(c)       third, to the Note A Holder up to the amount of any unreimbursed costs and expenses paid by the Note A Holder and not previously reimbursed to the Note A Holder pursuant to this Agreement or the Servicing Agreement;

 

(d)       fourth, if the proceeds of any foreclosure sale or any liquidation of a Mortgage Loan or Mortgaged Property exceed the amounts required to be applied in accordance with the foregoing clauses (a)-(c) and, as a result of a Workout the Note A Principal Balance has been reduced, such excess amount shall be paid first, to the Note A Holder in an amount up to the reduction, if any, of the Note A Principal Balance as a result of such Workout, plus interest on such amount at the Note A Rate;

 

(e)       fifth, to the Note B-1 Holder in an amount equal to the accrued and unpaid interest on the Note B-1 Principal Balance at the Net Note B-1 Rate;

 

(f)        sixth, to the Note A Holder in an amount equal to all remaining amounts received with respect to the related Monthly Payment Date, until the Note A Principal Balance has been reduced to zero;

 

(g)       seventh, to the extent the Note B-1 Holder has made any payments or advances to cure defaults pursuant to Section 11, to reimburse the Note B-1 Holder for all such cure payments;

 

(h)       eighth, to the Note B-1 Holder in an amount equal to all remaining amounts received with respect to the related Monthly Payment Date, until the Note B-1 Principal Balance has been reduced to zero;

 

(i)        ninth, to the Note B-1 Holder up to the amount of any unreimbursed costs and expenses paid by the Note B-1 Holder and not previously reimbursed to the Note B-1 Holder pursuant to this Agreement or the Servicing Agreement;

 

(j)        tenth, if the proceeds of any foreclosure sale or any liquidation of a Mortgage Loan or Mortgaged Property exceed the amounts required to be applied in accordance with the foregoing clauses (a)-(i) and, as a result of a Workout the Note B-1 Principal Balance has been reduced, such excess amount shall be paid first, to the Note B-1 Holder in an amount up to the reduction, if any, of the Note B-1 Principal Balance as a result of such Workout, plus interest on such amount at the Note B-1 Rate;

 

 

(k)       eleventh, to the extent the Note B-2 Holder has made any payments or advances to cure defaults pursuant to Section 11, to reimburse the Note B-2 Holder for all such cure payments;

 

(l)        twelfth, to the Note B-2 Holder in an amount equal to the accrued and unpaid interest on the Note B-2 Principal Balance at the Net Note B-2 Rate;

 

(m)      thirteenth, to the Note B-2 Holder in an amount equal to all remaining amounts received with respect to the related Monthly Payment Date, until the Note B-2 Principal Balance has been reduced to zero;

 

(n)       fourteenth, to the Note B-2 Holder up to the amount of any unreimbursed costs and expenses paid by the Note B-2 Holder and not previously reimbursed to the Note B-2 Holder pursuant to this Agreement or the Servicing Agreement;

 

(o)       fifteenth, if the proceeds of any foreclosure sale or any liquidation of a Mortgage Loan or Mortgaged Property exceed the amounts required to be applied in accordance with the foregoing clauses (a)-(n) and, as a result of a Workout the Note B-2 Principal Balance has been reduced, such excess amount shall be paid first, to the Note B-2 Holder in an amount up to the reduction, if any, of the Note B-2 Principal Balance as a result of such Workout, plus interest on such amount at the Note B-2 Rate;

 

(p)       sixteenth, any Prepayment Premium, to the extent paid by the Mortgage Loan Borrower, shall be paid to the Note A Holder in an amount up to its pro rata interest therein, based on the product of the Note A Percentage Interests multiplied by its Relative Spread;

 

(q)       seventeenth, any Prepayment Premium, to the extent paid by the Mortgage Loan Borrower, shall be paid to the Note B-1 Holder in an amount up to its pro rata interest therein, based on the product of the Note B-1 Percentage Interests multiplied by its Relative Spread;

 

(r)        eighteenth, any Prepayment Premium, to the extent paid by the Mortgage Loan Borrower, shall be paid to the Note B-2 Holder in an amount up to its pro rata interest therein, based on the product of the Note B-2 Percentage Interests multiplied by its Relative Spread;

 

(s)        nineteenth, to the extent default interest, late fees, assumption or transfer fees actually paid by the Mortgage Loan Borrower are not required to be otherwise applied under the Servicing Agreement, including, without limitation, to compensate a Servicer under the Servicing Agreement, any such default interest, late fees, assumption or transfer fees, to the extent actually paid by the Mortgage Loan Borrower, shall be paid to the Noteholders, pro rata, based on their respective Percentage Interests; and

 

(t)        twentieth, if any excess amount is available to be distributed in respect of the Mortgage Loan, and not otherwise applied in accordance with the foregoing clauses (a)-(s), any remaining amount shall be paid pro rata to each Noteholder in accordance with their respective initial Percentage Interests.

 

 

Section 5.     Administration of the Mortgage Loan.

 

(a)       Subject to this Agreement (including, without limitation, Section 5(f) below) and the Servicing Agreement, the Note A Holder (or the Servicer acting on behalf of the Note A Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy and neither the Note B-1 Holder nor the Note B-2 Holder shall have any voting, consent or other rights whatsoever with respect to the Note A Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Servicing Agreement (including, without limitation, Section 5(f) below), each of the Note B-1 Holder and the Note B-2 Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Note A Holder (or the Servicer acting on behalf of the Note A Holder) the rights, if any, that such Noteholder has to, (i) call or cause the Note A Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Note A Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Note A Holder (or the Servicer acting on behalf of the Note A Holder) shall not have any fiduciary duty to any other Noteholder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Note A Holder from the obligation to make any disbursement of funds as set forth herein).

 

(b)       The administration of the Mortgage Loan shall be governed by this Agreement and the Servicing Agreement. Each Noteholder agrees to be bound by the terms of the Servicing Agreement and this Agreement. Servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan by the Special Servicer, in each case pursuant to the Servicing Agreement and this Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Servicing Agreement, the Note A Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each of the Noteholders (it being understood that the interests of the Note B-1 Holder and the Note B-2 Holder are junior Note interests, subject to the terms and conditions of this Agreement), and so long as neither the Note B-1 Holder nor the Note B-2 Holder is the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party, it shall be deemed a third party beneficiary of such provisions of the Servicing Agreement. The foregoing provisions of this Section 5(b) shall not limit or modify the rights of the Controlling Noteholder and/or the Controlling Noteholder Representative to exercise their respective rights specifically set forth under this Agreement.

 

(c)       Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Servicing Agreement and this Agreement (including, without limitation, Section 5(f) below), if the Note A Holder in connection with a Workout of the Mortgage Loan modifies the terms thereof such that (i) the unpaid principal balance of the Mortgage Loan is decreased, (ii) the Interest Rate or scheduled amortization payments on the

 

 

Mortgage Loan are reduced, (iii) payments of interest or principal on the Mortgage Loan are waived, reduced or deferred or (iv) any other adjustment (other than an increase in the Interest Rate or increase in scheduled amortization payments) is made to any of the terms of the Mortgage Loan (other than an extension of the Mortgage Loan maturity date), all payments to the Note A Holder pursuant to Section 3 and Section 4, as applicable, shall be made as though such Workout did not occur, with the payment terms of Note A remaining the same as they are on the date hereof, Note B-2 and then Note B-1 shall bear the full economic effect of all waivers, reductions or deferrals of amounts due on the Mortgage Loan attributable to such Workout (up to the amount otherwise due on Note B-2 or on Note B-1). Subject to the Servicing Agreement and this Agreement (including without limitation Section 5(f) below), in the case of any modification or amendment described above, the Note A Holder will have the sole authority and ability to revise the payment provisions set forth in Section 3 and Section 4 above in a manner that reflects the subordination of Note B-2 to Note B-1 and of Note B-1 and Note B-2 to Note A with respect to the loss that is the result of such amendment or modification, including: (i) the ability to increase the Note A Percentage Interest and to reduce the Note B-1 Percentage Interest and the Note B-2 Percentage Interest in a manner that reflects a loss in principal as a result of such amendment or modification and (ii) the ability to change the Note A Rate, the Note B-1 Rate and the Note B-2 Rate, as applicable, in order to reflect a reduction in the Interest Rate of the Mortgage Loan but shall not be permitted to change the order of the clauses set forth in Sections 3 and 4 hereof. Notwithstanding the foregoing, if any Workout, modification or amendment of the Mortgage Loan extends the original maturity date of the Mortgage Loan, for purposes of this paragraph, the Balloon Payment will be deemed not to be due on the original maturity date of the Mortgage Loan but will be deemed due on the extended maturity date of the Mortgage Loan.

 

(d)       All rights and obligations of the Note A Holder described hereunder may be exercised by the Servicer on behalf of the Note A Holder in accordance with the Servicing Agreement and this Agreement.

 

(e)       For so long as Note A is included as an asset of a REMIC, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note A Holder pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Noteholder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Noteholders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G 2(b) of the regulations of the United States Department of the Treasury, more than three months after the earliest startup day of the REMIC which includes Note A (or any portion thereof). The Noteholders agree that the provisions of this Section 5(e) shall be effected by compliance by the Note A Holder or its assignees with this Agreement or the Servicing Agreement or any other agreement which governs the administration of the Mortgage Loan or the Note A Holder’s interests therein. All costs and expenses of compliance with this Section 5(e), to the extent that

 

 

such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne by the Note A Holder without reimbursement under Sections 3 or 4 hereof.

 

(f)        If any consent, modification, amendment or waiver under or other action in respect of the Mortgage Loan or the Mortgage Loan Documents (whether or not a Servicing Transfer Event has occurred and is continuing) that would constitute a Major Decision has been requested or proposed, at least ten (10) Business Days prior to taking action with respect to such Major Decision (or making a determination not to take action with respect to such Major Decision), the Note A Holder (or Servicer acting on its behalf) shall request the written consent of the Controlling Noteholder (or its Controlling Noteholder Representative) before implementing a decision with respect to such Major Decision.

 

If the Controlling Noteholder (or its Controlling Noteholder Representative) fails to respond to the Note A Holder (or Servicer acting on its behalf) with respect to any such proposed action within ten (10) Business Days after receipt of such notice, the Controlling Noteholder (or its Controlling Noteholder Representative), as applicable, shall have no further consent rights with respect to such action.

 

The Controlling Noteholder (or its Controlling Noteholder Representative) acknowledges that, if the “retaining sponsor” in the Securitization Trust has sold an “eligible horizontal interest” to a “third party purchaser” in accordance with Section _.7 of the Credit Risk Retention Rule, then following the occurrence of an “Operating Advisor Consultation Trigger Event” (or similar term) under the Servicing Agreement a Securitization Trust operating advisor may have the right to consult with the Special Servicer with respect to Major Decisions.

 

Notwithstanding the foregoing, following the occurrence of an extraordinary event with respect to any Mortgaged Property, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Note A Holder (or Servicer acting on its behalf) may take actions with respect to such Mortgaged Property before obtaining the consent of the Controlling Noteholder (or its Controlling Noteholder Representative) if the Note A Holder (or Servicer acting on its behalf) reasonably determines in accordance with the Servicing Standard that failure to take such actions prior to such consent would materially and adversely affect the interest of the Noteholders as a whole, and the Note A Holder (or Servicer acting on its behalf) has made a reasonable effort to contact the Controlling Noteholder (or its Controlling Noteholder Representative). The foregoing shall not relieve the Note A Holder (or Servicer acting on its behalf) of its duties to comply with the Servicing Standard.

 

Notwithstanding the foregoing, the Note A Holder (or Servicer acting on its behalf) shall not follow any advice, direction, objection or consultation provided by the Controlling Noteholder (or its Controlling Noteholder Representative) that would require or cause the Note A Holder (or Servicer acting on its behalf) to violate any applicable law, including the REMIC Provisions, be inconsistent with the Servicing Standard, require or cause the Note A Holder (or Servicer acting on its behalf) to violate provisions of this Agreement or the Servicing Agreement, require or cause the Note A Holder (or Servicer acting on its behalf) to

 

 

violate the terms of the Mortgage Loan, or materially expand the scope of the Note A Holder’s (or Servicer acting on its behalf) responsibilities under this Agreement.

 

(g)       The Controlling Noteholder shall be entitled to approve the Asset Status Report in accordance with the time frame provided in the Servicing Agreement.

 

(h)       (i)     If the Note B-1 Holder or the Note B-2 Holder is determined at any time of determination to no longer be the Controlling Noteholder (the “Appraised-Out Holder”) as a result of the application of an Appraisal Reduction Amount, such Noteholder shall have the right, at its sole expense, to require the Special Servicer to order a second Appraisal with respect to the Mortgage Loan. The Special Servicer shall use its reasonable best efforts to ensure that such second Appraisal is (A) delivered within thirty (30) days from receipt of the Appraised-Out Holder’s written request and (B) prepared on an “as-is” basis by an MAI appraiser (provided that such MAI appraiser may not be the same MAI appraiser that provided the Appraisal in respect of which the Appraised-Out Holder is requesting the Special Servicer to obtain an additional Appraisal).

 

(ii)   Upon receipt of any supplemental Appraisal pursuant to clause (i) above, the Special Servicer shall determine, in accordance with the Servicing Standard, whether, based on its assessment of such supplemental Appraisal, any recalculation of the Appraisal Reduction Amount is warranted, and if so warranted, the Special Servicer shall recalculate the Appraisal Reduction Amount based on such supplemental Appraisal and any information received from the Master Servicer. If required by such recalculation, the Appraised-Out Holder shall be reinstated as the Controlling Noteholder and, if applicable, shall have its Principal Balance notionally restored to the extent required by such recalculation of the Appraisal Reduction Amount. The Appraised-Out Holder requesting any supplemental Appraisal pursuant to clause (i) above shall refrain from exercising any direction, control, consent and/or similar rights of the Controlling Noteholder until such time, if any, as the holder is reinstated as the Controlling Noteholder (such period beginning upon receipt by the Special Servicer of any request to obtain a supplemental Appraisal pursuant to clause (i) above to but excluding the date on which either (A) the Special Servicer determines that no recalculation of the Appraisal Reduction Amount is warranted or (B) the Special Servicer recalculates the Appraisal Reduction Amount based on the supplemental Appraisal, the “Appraisal Review Period”). The rights of the Controlling Noteholder during each Appraisal Review Period shall be exercised by the Note A Holder.

 

(i)        The Note B-1 Holder and the Note B-2 Holder shall be entitled to avoid a Control Appraisal Period caused by application of an Appraisal Reduction Amount upon satisfaction of the following (which must be completed within thirty (30) days of the receipt of a third party Appraisal that indicates such Control Appraisal Period has occurred): (i) such Noteholder shall have delivered as a supplement to the Appraised Value of the Mortgaged Property, in the amount specified in clause (ii) below, to the Servicer, together with documentation acceptable to the Servicer in accordance with the Servicing Standard to create and perfect a first priority security interest in favor of the Noteholders in such collateral (a) cash collateral for the benefit of the Notes, and acceptable to, the Servicer or (b) an unconditional and irrevocable standby letter of credit with the Noteholders as the beneficiary, issued by a bank or other financial institutions the long term unsecured debt obligations of which are at all times

 

 

rated at least “AA” by S&P, “A” by Fitch and “Aa2” by ▇▇▇▇▇’▇ or the short term obligations of which are rated at least “A-1+” by S&P, “F-1” by Fitch and “P-1” by ▇▇▇▇▇’▇ (either (a) or (b), the “Threshold Event Collateral”), and (ii) the Threshold Event Collateral shall be in an amount which, when added to the Appraised Value of the Mortgaged Property as determined pursuant to the Servicing Agreement, would cause the applicable Control Appraisal Period not to occur. If the requirements of this paragraph are satisfied by either the Note B-1 Holder or the Note B-2 Holder (a “Threshold Event Cure”), no Note B-1 Control Appraisal Period or Note B-2 Control Appraisal Period, as applicable, caused by application of an Appraisal Reduction Amount shall be deemed to have occurred. If a letter of credit is furnished as Threshold Event Collateral, the Note B-1 Holder or Note B-2 Holder, as applicable, shall be required to renew such letter of credit not later than thirty (30) days prior to expiration thereof or to replace such letter of credit with a substitute letter of credit or other Threshold Event Collateral with an expiration date that is greater than forty-five (45) days from the date of substitution; provided, however, that, if a letter of credit is not renewed prior to thirty (30) days prior to the expiration date of such letter of credit, the letter of credit shall provide that the Servicer may (and at the direction of the Note B-1 Holder or Note B-2 Holder, as applicable, shall) draw upon such letter of credit and hold the proceeds thereof as Threshold Event Collateral. If a letter of credit is furnished as Threshold Event Collateral, the Note B-1 Holder or Note B-2 Holder, as applicable, shall be required to replace such letter of credit with other Threshold Event Collateral within thirty (30) days if the credit ratings of the issuing entity are downgraded below the required ratings; provided, however, that, if such Threshold Event Collateral is not so replaced, the Servicer shall draw upon such letter of credit and hold the proceeds thereof as Threshold Event Collateral. The Threshold Event Cure shall continue until (i) the Appraised Value of the Mortgaged Property plus the value of the Threshold Event Collateral would not be sufficient to prevent a Control Appraisal Period from occurring; or (ii) final liquidation of the Mortgage Loan or REO Property. If the Appraised Value of the Mortgaged Property, upon any redetermination thereof, is sufficient to avoid the occurrence of a Control Appraisal Period without taking into consideration any, or some portion of, Threshold Event Collateral previously delivered by such Noteholder, any or such portion of Threshold Event Collateral held by the Servicer shall promptly be returned to the Note B-1 Holder or Note B-2 Holder, as applicable (at its sole expense). Upon final liquidation or repayment of the Mortgage Loan or REO Property with respect to the Mortgage Loan, such Threshold Event Collateral shall be available to reimburse each Noteholder for any realized loss pursuant to the priorities provided in Section 3 or 4, as applicable, with respect to the Mortgage Loan after application of the net proceeds of liquidation, but not in excess of the Principal Balances of the Notes, plus accrued and unpaid interest thereon at the applicable interest rate and all other Additional Servicing Expenses reimbursable under this Agreement and under the Servicing Agreement. The entire amount of Threshold Event Collateral, without a haircut or other reduction, shall be considered in determining the sufficiency of such Threshold Event Collateral to avoid a Control Appraisal Period.

 

(j)        The Servicer or Special Servicer shall obtain appraisals that meet the requirements of, and at the times required pursuant to, the terms of the Securitization Servicing Agreement.

 

(k)       If the Mortgaged Property becomes an REO Property, the same shall be acquired, managed and operated in the manner provided in the Servicing Agreement.

 

 

Section 6.     Appointment of the Controlling Noteholder Representative.

 

(a)       The Controlling Noteholder shall have the right at any time to appoint a representative (the “Controlling Noteholder Representative”) to exercise its rights hereunder. The Controlling Noteholder shall have the right in its sole discretion at any time and from time to time to remove and replace the Controlling Noteholder Representative. When exercising its various rights under Section 5 and elsewhere in this Agreement, the Controlling Noteholder may, at its option, in each case, act through the Controlling Noteholder Representative. The Controlling Noteholder Representative may be any Person (other than the Mortgage Loan Borrower, its principal or any Affiliate of the Mortgage Loan Borrower), including, without limitation, the Controlling Noteholder, any officer or employee of the Controlling Noteholder, any Affiliate of the Controlling Noteholder or any other unrelated third party. No such Controlling Noteholder Representative shall owe any fiduciary duty or other duty to any other Person (other than the Controlling Noteholder). All actions that are permitted to be taken by the Controlling Noteholder under this Agreement may be taken by the Controlling Noteholder Representative acting on behalf of the Controlling Noteholder and the Note A Holder will accept such actions of the Controlling Noteholder Representative as actions of the Controlling Noteholder. The Note A Holder (or any Servicer on its behalf) shall not be required to recognize any Person as an Controlling Noteholder Representative until the Controlling Noteholder has notified the Note A Holder (and any Servicer) of such appointment and, if the Controlling Noteholder Representative is not the same Person as the Controlling Noteholder, the Controlling Noteholder Representative provides the Note A Holder (and any Servicer) with written confirmation of its acceptance of such appointment, an address (including e-mail) and telecopy number for the delivery of notices and other correspondence and a list of officers or employees of such person with whom the parties to this Agreement may deal (including their names, titles, work addresses (including e-mail) and telecopy numbers). The Note A Holder shall promptly deliver such information to any Servicer.

 

(b)       Neither the Controlling Noteholder Representative nor the Controlling Noteholder will have any liability to the other Noteholders or any other Person for any action taken, or for refraining from the taking of any action pursuant to this Agreement or the Servicing Agreement, or errors in judgment, absent any loss, liability or expense incurred by reason of its willful misfeasance, bad faith or gross negligence. The Noteholders agree that the Controlling Noteholder Representative and any Controlling Noteholder (whether acting in place of the Controlling Noteholder Representative when no Controlling Noteholder Representative shall have been appointed hereunder or otherwise exercising any right, power or privilege granted to the Controlling Noteholder hereunder) may take or refrain from taking actions that favor the interests of one Noteholder over the other Noteholders, and that the Controlling Noteholder Representative may have special relationships and interests that conflict with the interests of a Noteholder and, absent willful misfeasance, bad faith or gross negligence on the part of the Controlling Noteholder Representative or such Controlling Noteholder, as the case may be, agree to take no action against the Controlling Noteholder Representative, such Controlling Noteholder or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and that neither the Controlling Noteholder Representative nor such Controlling Noteholder will be deemed to have been grossly negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance or to have recklessly disregarded any

 

 

exercise of its rights by reason of its having acted or refrained from acting solely in the interests of any Noteholder.

 

(c)       If the Note A Holder is the Controlling Noteholder, the Note B-1 Holder acknowledges and agrees all of the aforementioned rights and obligations of the Controlling Noteholder and the Controlling Noteholder Representative set forth in Section 5(f) and this Section 6 shall be exercisable by the Note A Holder (or the applicable Person specified in the Servicing Agreement) to the extent set forth in the Servicing Agreement.

 

Section 7.     Special Servicer. Subject to the terms of the Servicing Agreement, the Controlling Noteholder (or its Controlling Noteholder Representative), at its expense (including, without limitation, the reasonable costs and expenses of counsel to any third parties and costs and expenses of the terminated Special Servicer), shall have the right to appoint a replacement Special Servicer under the Servicing Agreement, with or without cause, upon at least ten (10) Business Days’ prior notice to the Special Servicer (provided, however, that the Controlling Noteholder (or its Controlling Noteholder Representative) shall not be liable for any termination or similar fee in connection with the removal of the Special Servicer in accordance with this Section 7); any such termination not to be effective unless and until (A) each Rating Agency delivers Rating Agency Confirmation with respect to the identity of any such replacement Special Servicer (to the extent Note A and/or Note B-1 has been transferred in connection with a Securitization); (B) the initial or successor Special Servicer has assumed in writing (from and after the date such successor Special Servicer becomes the Special Servicer) all of the responsibilities, duties and liabilities of the Special Servicer under the Servicing Agreement from and after the date it becomes the Special Servicer as they relate to such Mortgage Loan pursuant to an assumption agreement reasonably satisfactory to the Trustee; and (C) the Trustee shall have received an opinion of counsel reasonably satisfactory to the Trustee to the effect that (x) such replacement will be bound by the terms of the Servicing Agreement with respect to such Mortgage Loan and (y) subject to customary qualifications and exceptions, the applicable servicing agreement will be enforceable against such replacement in accordance with its terms. The Controlling Noteholder shall promptly provide copies to any terminated Special Servicer of the documents referred to in the preceding sentence.

 

Notwithstanding the foregoing, after the Securitization Date, if the “retaining sponsor” in the Securitization Trust has sold an “eligible horizontal interest” to a “third party purchaser” in accordance with Section 244.7 of the Credit Risk Retention Rule, each Noteholder agrees that the Special Servicer may be replaced upon (a) the recommendation of the operating advisor appointed under the Securitization Servicing Agreement if the operating advisor determines, in its sole discretion exercised in good faith, that (1) the Special Servicer has failed to comply with the Servicing Standard and (2) a replacement of the Special Servicer would be in the best interest of the holders of the Certificates, and (b) the subsequent affirmative vote of “ABS interests” (as defined in Section 244.2 of the Credit Risk Retention Rule). However, the Note B-2 Holder shall retain its right to subsequently remove and replace the Special Servicer, but the Note B-2 Holder shall not restore a Special Servicer that has been replaced pursuant to the preceding sentence.

 

Prior to the Securitization, if the Mortgage Loan becomes a Specially Serviced Mortgage Loan, and if not later than thirty (30) days after the Mortgage Loan becomes a

 

 

Specially Serviced Mortgage Loan the Controlling Noteholder (or its Controlling Noteholder Representative) elects to replace the Special Servicer, then each Noteholder agrees that no liquidation fees or workout fees shall be payable to the Special Servicer being replaced, unless such Special Servicer shall have either successfully completed a workout or a liquidation, in which case such fees shall be payable as provided herein.

 

Section 8.     Payment Procedure.

 

(a)       The Note A Holder (or the Servicer on its behalf), in accordance with the priorities set forth in Section 3 or 4, as applicable, and subject to the terms of the Servicing Agreement, shall deposit or cause to be deposited all payments allocable to the Notes to the Collection Account for the Notes established pursuant to the Servicing Agreement. The Note A Holder (or the Servicer on its behalf) shall establish a segregated sub-account for amounts due to the Note A Holder, the Note B-1 Holder and the Note B-2 Holder. The Note A Holder (or the Servicer acting on its behalf) shall deposit such amounts to the applicable account on the Business Day next following the date such payment was received by the Note A Holder (or the Servicer acting on its behalf) from or on behalf of the Mortgage Loan Borrower.

 

(b)       If the Note A Holder (or the Servicer on its behalf) determines, or a court of competent jurisdiction orders, at any time that any amount received or collected in respect of any Note must, pursuant to any insolvency, bankruptcy, fraudulent conveyance, preference or similar law, be returned to the Mortgage Loan Borrower or paid to the Note A Holder, the Note B-1 Holder, the Note B-2 Holder or any Servicer or paid to any other Person, then, notwithstanding any other provision of this Agreement, the Note A Holder (or the Servicer on its behalf) shall not be required to distribute any portion thereof to such Noteholder, and such Noteholder shall promptly on demand by the Note A Holder (or the Servicer on its behalf) repay to the Note A Holder (or the Servicer on its behalf) any portion thereof that the Note A Holder (or the Servicer on its behalf) shall have theretofore distributed to such Noteholder together with interest thereon at such rate, if any, as the Note A Holder shall have been required to pay to any Mortgage Loan Borrower, the Note A Holder, Master Servicer, Special Servicer or such other Person with respect thereto.

 

(c)       If, for any reason, the Note A Holder (or the Servicer on its behalf) makes any payment to a Noteholder before the Note A Holder (or the Servicer on its behalf) has received the corresponding payment (it being understood that the Note A Holder (or the Servicer on its behalf) is under no obligation to do so), and the Note A Holder (or the Servicer on its behalf) does not receive the corresponding payment within three (3) Business Days of its payment to the such Noteholder, such Noteholder shall, at the Note A Holder’s (or the Servicer’s on its behalf) request, promptly return that payment to the Note A Holder (or the Servicer on its behalf).

 

(d)       Each Noteholder agrees that if at any time it shall receive from any sources whatsoever any payment on account of the Mortgage Loan in excess of its distributable share thereof, it will promptly remit such excess to the Note A Holder (or the Servicer on its behalf), the Note B-1 Holder or the Note B-2 Holder, as applicable, subject to this Agreement and the Servicing Agreement. The Note A Holder (or the Servicer on its behalf) shall have the right to offset any amounts due under this Section 8(d) from a Noteholder with respect to the

 

 

Mortgage Loan against any future payments due to such Noteholder under the Mortgage Loan, provided, that each Noteholder’s obligations under this Section 8 are separate and distinct obligations from one another and in no event shall Note A Holder (or the Servicer on its behalf) enforce the obligations of one Noteholder against another Noteholder. The Note A Holder’s, the Note B-1 Holder’s and the Note B-2 Holder’s obligations under this Section 8 constitute absolute, unconditional and continuing obligations.

 

Section 9.     Limitation on Liability of the Noteholders. Each Noteholder (including any Servicer, except as otherwise provided in the Servicing Agreement ) shall have no liability to any other Noteholder with respect to its Note except with respect to losses actually suffered due to the gross negligence, willful misconduct or breach of this Agreement on the part of such Noteholder (or Servicer).

 

The Noteholders acknowledge that, subject to the terms and conditions hereof and the obligation of the Note A Holder (including any Servicer) to comply with, and except as otherwise required by, the Servicing Standard, the Note A Holder (including any Servicer) may exercise, or omit to exercise, any rights that the Note A Holder may have under this Agreement and the Servicing Agreement in a manner that may be adverse to the interests of the Note B-1 Holder or the Note B-2 Holder and that the Note A Holder (including any Servicer) shall have no liability whatsoever to either the Note B-1 Holder or the Note B-2 Holder in connection with the Note A Holder’s exercise of rights or any omission by the Note A Holder to exercise such rights other than as described above; provided, however, that the Servicer must act in accordance with the Servicing Standard and the Note A Holder shall not be protected against any liability to the other Noteholders that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence.

 

The Note A Holder acknowledges that, subject to the terms and conditions hereof, any other Noteholder may exercise, or omit to exercise, any rights that such Noteholder may have under this Agreement and the Servicing Agreement in a manner that may be adverse to the interests of the Note A Holder and that such Noteholder shall have no liability whatsoever to the Note A Holder in connection with such Noteholder’s exercise of rights or any omission by the such Noteholder to exercise such rights; provided, however, that no Noteholder shall be protected against any liability to the Note A Holder that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence.

 

Section 10.     Bankruptcy. Subject to the provisions of Section 5(f) hereof, the Note B-1 Holder and the Note B-2 Holder hereby covenants and agrees that only the Note A Holder (or the Servicer on its behalf) has the right to institute, file, commence, acquiesce, petition under Bankruptcy Code Section 303 or otherwise or join any Person in any such petition or otherwise invoke or cause any other Person to invoke an Insolvency Proceeding with respect to or against the Mortgage Loan Borrower or seek to appoint a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official with respect to the Mortgage Loan Borrower or all or any part of its property or assets or ordering the winding-up or liquidation of the affairs of the Mortgage Loan Borrower. Subject to the provisions of Section 5(f) hereof, the Note B-1 Holder and the Note B-2 Holder further agrees that only the Note A Holder, as a creditor, can make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any case by or against the

 

 

Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding. The Note B-1 Holder and the Note B-2 Holder hereby appoints the Note A Holder as its agent, and grants to the Note A Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of exercising any and all rights and taking any and all actions available to the Note B-1 Holder and the Note B-2 Holder in connection with any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding, including, without limitation, the right to file and/or prosecute any claim, vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code with respect to the Mortgage Loan, and to file a motion to modify, lift or terminate the automatic stay with respect to the Mortgage Loan. The Note B-1 Holder and the Note B-2 Holder hereby agree that, upon the request of the Note A Holder, such Noteholder shall execute, acknowledge and deliver to the Note A Holder all and every such further deeds, conveyances and instruments as the Note A Holder may reasonably request for the better assuring and evidencing of the foregoing appointment and grant. All actions taken by the Servicer in connection with any Insolvency Proceeding are subject to and must be in accordance with the Servicing Standard and this Agreement.

 

Section 11.     Cure Rights of the Note B-1 Holder and the Note B-2 Holder.

 

(a)       Subject to Section 11(b) below, in the event that the Mortgage Loan Borrower fails to make any payment of principal or interest on the Mortgage Loan by the end of the applicable grace period for such payment permitted under the applicable Mortgage Loan Documents (a “Monetary Default”), the Note A Holder shall promptly provide notice to the Note B-1 Holder, the Note B-2 Holder and the Controlling Noteholder Representative of such default (the “Monetary Default Notice”). The Note B-1 Holder and the Note B-2 Holder shall have the right, but not the obligation, to cure such Monetary Default (such curing Noteholder, the “Curing Noteholder”) within ten (10) Business Days after receiving the Monetary Default Notice (the “Cure Period”). If one or more of the Noteholders elect to cure such Monetary Default, the most subordinate of such Noteholders will be the “Curing Noteholder”. At the time a payment is made to cure a Monetary Default, the Curing Noteholder shall pay or reimburse the Note A Holder (and each more senior Noteholder) for all unreimbursed Advances (whether or not recoverable), Advance Interest Amounts, any unpaid fees to any Servicer and any Additional Servicing Expenses. The Curing Noteholder shall not be required, in order to effect a cure hereunder, to pay any default interest or late charges under the Mortgage Loan Documents. So long as a Monetary Default exists for which a cure payment permitted hereunder is made, such Monetary Default shall not be treated as an Event of Default by the Note A Holder (including for purposes of (i) the definition of “Sequential Pay Event,” (ii) accelerating the Mortgage Loan, modifying, amending or waiving any provisions of the Mortgage Loan Documents or commencing proceedings for foreclosure or the taking of title by deed-in-lieu of foreclosure or other similar legal proceedings with respect to the Mortgaged Property, or (iii) treating the Mortgage Loan as a Specially Serviced Mortgage Loan); provided that such limitation shall not prevent the Note A Holder from collecting default interest or late charges from the Mortgage Loan Borrower. Any amounts advanced by a Noteholder on behalf of the Mortgage Loan Borrower to effect any cure shall be reimbursable to such Noteholder under Section 3 or Section 4, as applicable.

 

 

(b)       Notwithstanding anything to the contrary contained in Section 11(a), the Note B-1 Holder and the Note B-2 Holder shall be limited to six (6) cures of Monetary Defaults in any 12 month period, but in no event more than twelve (12) cures of Monetary Defaults over the term of the Mortgage Loan, and six (6) cures of Non-Monetary Defaults over the term of the Mortgage Loan, it being understood that a Non-Monetary Default Cure Period that may extend longer than one month in accordance with Section 11(d) shall be considered to be a single cure. Additional Cure Periods shall only be permitted with the consent of the Note A Holder (or the Servicer acting on its behalf) and in the case of any cure made by the Note B-2 Holder, the Note B-1 Holder.

 

(c)       No action taken by the Note B-1 Holder or the Note B-2 Holder in accordance with this Agreement shall excuse performance by the Mortgage Loan Borrower of its obligations under the Mortgage Loan Documents and Note A Holder’s rights under the Mortgage Loan Documents shall not be waived or prejudiced by virtue of the Note B-1 Holder’s or the Note B-2 Holder’s actions under this Agreement. Subject to the terms of this Agreement, the Curing Noteholder shall be subrogated to the Note A Holder’s rights and, in the case of a cure by the Note B-2 Holder, to the Note B-1 Holder’s rights to any payment owing to the Note A Holder and, if applicable, to the Note B-1 Holder for which the Curing Noteholder makes a cure payment as permitted under this Section 11 but such subrogation rights may not be exercised against the Mortgage Loan Borrower until 91 days after Note A (and in the case of any subrogation rights held by the Note B-2 Holder, Note B-1) is paid in full.

 

(d)       If an Event of Default (other than a Monetary Default) occurs and is continuing under the Mortgage Loan Documents (a “Non-Monetary Default”), the Note A Holder shall promptly provide notice to the Note B-1 Holder, the Note B-2 Holder and the Controlling Noteholder Representative of such failure (the “Non-Monetary Default Notice”) and the Note B-1 Holder and the Note B-2 Holder shall have the right, but not the obligation, to cure such Non-Monetary Default within ten (10) days from the later of (i) the expiration of the cure period of the Mortgage Loan Borrower under the Mortgage Loan Documents and (ii) receipt of the Non-Monetary Default Notice; provided, however, if such Non-Monetary Default is susceptible of cure but cannot reasonably be cured within such period and if curative action was promptly commenced and is being diligently pursued by the Curing Noteholder, such Curing Noteholder shall be given an additional period of time as is reasonably necessary to enable such Curing Noteholder in the exercise of due diligence to cure such Non-Monetary Default for so long as (i) the Curing Noteholder diligently and expeditiously proceeds to cure such Non-Monetary Default, (ii) the Curing Noteholder makes all cure payments that it is permitted to make in accordance with the terms and provisions of Section 11(a) hereof, (iii) such additional period of time does not exceed seventy five (75) days, (iv) such Non-Monetary Default is not caused by an Insolvency Proceeding or during such period of time that the Curing Noteholder has to cure a Non-Monetary Default in accordance with this Section 11(d) (the “Non-Monetary Default Cure Period”), an Insolvency Proceeding does not occur and (v) during such Non-Monetary Default Cure Period, there is no material adverse effect on the Mortgage Loan Borrower or the Mortgaged Property or the value of the Mortgage Loan as a result of such Non-Monetary Default or the attempted cure. If one or more of the Noteholders elect to cure such default, the most subordinate of such Noteholders will be the “Curing Noteholder” so long as it is diligently pursuing such non-monetary cure, and will have the exclusive right to effect such cure.

 

 

Section 12.     Purchase Rights of Subordinate Noteholders. The Note B-1 Holder and the Note B-2 Holder shall have the right, by written notice to the Noteholders of the Notes senior thereto (a “Noteholder Purchase Notice”), delivered at any time an Event of Default under the Mortgage Loan has occurred and is continuing, to purchase (such purchasing Noteholder, the “Purchasing Noteholder”), in immediately available funds, each of the Notes that are senior to such Note, in whole but not in part at the applicable Defaulted Mortgage Loan Purchase Price. Upon the delivery of the Noteholder Purchase Notice to the applicable Noteholder, the applicable Noteholder shall sell (and the Purchasing Noteholder shall purchase) the applicable Note (including, without limitation, any Notes therein) at the applicable Defaulted Mortgage Loan Purchase Price, on a date (the “Defaulted Note Purchase Date”) (i) not more than fifteen (15) Business Days after the written exercise by the Purchasing Noteholder to purchase the applicable senior Notes or (ii) not more than forty (40) days after the written exercise by the Purchasing Noteholder to purchase the applicable senior Notes if such Purchasing Noteholder deposits 10% of the Defaulted Mortgage Loan Purchase Price with the selling Noteholder(s) within ten (10) Business Days after the written exercise of the Purchasing Noteholder to purchase the applicable senior Notes. Any Noteholder Purchase Notice shall contain a statement that the Noteholder’s failure to purchase the applicable senior Note(s) on a Defaulted Note Purchase Date will result in the termination of such Noteholder’s right. The Purchasing Noteholder agrees that the sale of the purchased Notes shall comply with all requirements of the Servicing Agreement and that all costs and expenses related thereto shall be paid by the Purchasing Noteholder. The Defaulted Mortgage Loan Purchase Price shall be calculated by the Note A Holder (or the Servicer on its behalf) three (3) Business Days prior to the Defaulted Note Purchase Date (and such calculation shall be accompanied by a listing of all amounts included in the Defaulted Mortgage Loan Purchase Price), and shall, absent manifest error, be binding upon the Purchasing Noteholder. Concurrently with the payment to the Note A Holder and, if applicable, the Note B-1 Holder in immediately available funds of its respective portion of the applicable Defaulted Mortgage Loan Purchase Price, the selling Noteholder shall execute at the sole cost and expense of the Purchasing Noteholder in favor of such Purchasing Noteholder assignment documentation that will assign the purchased Note(s) and the Mortgage Loan Documents without recourse, representations or warranties (except that each selling Noteholder shall represent and warrant that it had good and marketable title to, was the sole owner and holder of, and had power and authority to deliver the Mortgage Loan or Note, as applicable, free and clear of all liens and encumbrances). The right of the Note B-1 Holder and the Note B-2 Holder to purchase shall automatically terminate upon a foreclosure sale, sale by power of sale or delivery of a deed in lieu of foreclosure with respect to the Mortgaged Property (and the Note A Holder shall give the Note B-1 Holder and the Note B-2 Holder fifteen (15) days’ notice of its intent with respect to any such action). Notwithstanding the foregoing sentence, if title to the Mortgaged Property is transferred to the Note A Holder (or a designee on its behalf) less than fifteen (15) days after the acceleration of the Mortgage Loan, the Note A Holder shall notify the Note B-1 Holder and the Note B-2 Holder of such transfer, and each of the Note B-1 Holder and/or the Note B-2 Holder shall have a fifteen (15) day period from the date of such notice from the Note A Holder to deliver the Noteholder Purchase Notice in accordance with this Section 12, in which case the Purchasing Noteholder will be obligated to purchase the Mortgaged Property, in immediately available funds, within such fifteen (15) day period at the applicable Defaulted Mortgage Loan Purchase Price for such Notes(s). In the event one or more of the Note B-1

 

 

Holder or the Note B-2 Holder delivers a Noteholder Purchase Notice, the most subordinate Noteholder shall have the right to exercise the purchase option set forth in this Section 12.

 

Section 13.     Representations of the Note B-1 Holder and the Note B-2 Holder. Each of the Note B-1 Holder and the Note B-2 Holder represents, and it is specifically understood and agreed, that it is acquiring its respective Note for its own account in the ordinary course of its business and the Note A Holder shall otherwise have no liability or responsibility to either the Note B-1 Holder or the Note B-2 Holder except as expressly provided herein or for actions that are taken or omitted to be taken by the Note A Holder that constitute gross negligence or willful misconduct or that constitute a breach of this Agreement. Each of the Note B-1 Holder and the Note B-2 Holder represents and warrants that the execution, delivery and performance of this Agreement is within its respective corporate powers, has been duly authorized by all necessary corporate action, and does not contravene such Noteholder’s charter or any law or contractual restriction binding upon such Noteholder, and that this Agreement is the legal, valid and binding obligation of such Noteholder enforceable against such Noteholder in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except that the enforcement of rights with respect to indemnification and contribution obligations may be limited by applicable law. Each of the Note B-1 Holder and the Note B-2 Holder represents and warrants that it is duly organized, validly existing, in good standing and possesses of all licenses and authorizations necessary to carry on its business. Each of the Note B-1 Holder and the Note B-2 Holder represents and warrants that (a) this Agreement has been duly executed and delivered by such Noteholder, (b) to such Noteholder’s actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by such Noteholder have been obtained or made, (c) to such Noteholder’s actual knowledge, there is no pending action, suit or proceeding, arbitration or governmental investigation against such Noteholder, an adverse outcome of which would materially and adversely affect its performance under this Agreement and (d) the acquisition and holding of its Note will not result in a non-exempt violation of any applicable federal, state or local law that is materially similar to Section 406 of ERISA or Section 4975 of the Code.

 

Each of the Note B-1 Holder and the Note B-2 Holder acknowledges that the Note A Holder does not owe either the Note B-1 Holder or the Note B-2 Holder any fiduciary duty with respect to any action taken under the Mortgage Loan Documents and, except as provided herein, need not consult with the Note B-1 Holder or the Note B-2 Holder with respect to any action taken by the Note A Holder in connection with the Mortgage Loan.

  

Each of the Note B-1 Holder and the Note B-2 Holder expressly and irrevocably waives for itself and any Person claiming through or under the Note B-1 Holder or the Note B-2 Holder any and all rights that it may have under Section 1315 of the New York Real Property Actions and Proceedings Law or the provisions of any similar law which purports to give a junior loan Noteholder the right to initiate any loan enforcement or foreclosure proceedings.

 

 

 

Section 14.     Representations of the Initial Note A Holder. The Initial Note A Holder represents and warrants that the execution, delivery and performance of this Agreement is within its corporate powers, has been duly authorized by all necessary corporate action, and does not contravene the Initial Note A Holder’s charter or any law or contractual restriction binding upon the Initial Note A Holder, and that this Agreement is the legal, valid and binding obligation of the Initial Note A Holder enforceable against the Initial Note A Holder in accordance with its terms. The Initial Note A Holder represents and warrants that it is duly organized, validly existing, in good standing and possession of all licenses and authorizations necessary to carry on its business. The Initial Note A Holder represents and warrants that (a) this Agreement has been duly executed and delivered by the Initial Note A Holder, (b) to the Initial Note A Holder’s actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by the Initial Note A Holder has been obtained or made and (c) to the Initial Note A Holder’s actual knowledge, there is no pending action, suit or proceeding, arbitration or governmental investigation against the Initial Note A Holder, an adverse outcome of which would materially and adversely affect its performance under this Agreement.

 

Section 15.     Independent Analysis of the Note B-1 Holder and the Note B-2 Holder. Each of the Note B-1 Holder and the Note B-2 Holder acknowledges that it has, independently and without reliance upon the Initial Note A Holder, except with respect to the representations and warranties provided by the Initial Note A Holder herein, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to purchase its Note and each of the Note B-1 Holder and the Note B-2 Holder accepts responsibility therefor. Each of the Note B-1 Holder and the Note B-2 Holder hereby acknowledges that, other than the representations and warranties provided herein, the Note A Holder has made no representations or warranties with respect to the Mortgage Loan, subject to such representations and warranties as provided by the Note A Holder herein, and that the Note A Holder shall have no responsibility for (i) the collectibility of the Mortgage Loan, (ii) the validity, enforceability or legal effect of any of the Mortgage Loan Documents or the title insurance policy or policies or any survey furnished or to be furnished to the Note A Holder in connection with the origination of the Mortgage Loan, (iii) the validity, sufficiency or effectiveness of the lien created or to be created by the Mortgage Loan Documents, or (iv) the financial condition of the Mortgage Loan Borrower. The Note A Holder assumes all risk of loss in connection with Note A except as specifically set forth herein. The Note B-1 Holder assumes all risk of loss in connection with Note B-1 except as specifically set forth herein. The Note B-2 Holder assumes all risk of loss in connection with Note B-2 except as specifically set forth herein.

 

Section 16.     No Creation of a Partnership or Exclusive Purchase Right. Nothing contained in this Agreement, and no action taken pursuant hereto shall be deemed to constitute the relationship created hereby among any of the Noteholders as a partnership, association, joint venture or other entity. No Noteholder shall have any obligation whatsoever to offer to any other Noteholder the opportunity to purchase a participation interest in any future loans originated by such Noteholder or its Affiliates and if any Noteholder chooses to offer to any other Noteholder the opportunity to purchase a participation interest in any future mortgage loans originated by such Noteholder or its Affiliates, such offer shall be at such purchase price and interest rate as such Noteholder chooses, in its sole and absolute discretion. No Noteholder

 

 

shall have any obligation whatsoever to purchase from any other the Noteholder a participation interest in any future loans originated by such Noteholder or its Affiliates.

 

Section 17.     Not a Security. Neither Note B-1 nor Note B-2 shall be deemed to be a security within the meaning of the Securities Act of 1933 or the Securities Exchange Act of 1934.

 

Section 18.     Other Business Activities of the Noteholders. Each Noteholder acknowledges that each of the other Noteholders or its Affiliates may make loans or otherwise extend credit to, and generally engage in any kind of business with, any Affiliate of the Mortgage Loan Borrower Related Party, and receive payments on such other loans or extensions of credit to Mortgage Loan Borrower Related Parties and otherwise act with respect thereto freely and without accountability in the same manner as if this Agreement and the transactions contemplated hereby were not in effect.

 

Section 19.     Sale of the Notes.

 

(a)       Each of the Note B-1 Holder and the Note B-2 Holder agrees that it will not Transfer all or any portion of its Note except that each such Noteholder shall have the right to Transfer its respective Note, or any portion thereof, without the consent of the Note A Holder or any other Person (i) to a Qualified Transferee, or (ii) to an entity that is not a Qualified Transferee, provided that:

 

(A) in the case of both clause (i) and (ii) such transfer would not cause the applicable Note to be directly held by more than five (5) Persons, and

 

(B) in the case of clause (ii) such Noteholder obtains (1) prior to a Securitization of Note A or Note B-1, the consent of the Note A Holder or the Note B-1 Holder, as applicable, which shall not be unreasonably withheld, delayed or conditioned and (2) after a Securitization of Note A or Note B-1, Rating Agency Confirmation (and for avoidance of doubt, no consent of the Note A Holder or the Note B-1 Holder shall be required after a Securitization).

 

If either Note B-1 or Note B-2 is held by more than one Noteholder at any time, the holders of a majority of the Note B-1 Principal Balance or the Note B-2 Principal Balance, as applicable, shall immediately appoint a representative to exercise all of the rights allocated to the holder of such Note hereunder.

 

Notwithstanding the foregoing, without (1) the Note A Holder’s prior consent, which may be withheld in the Note A Holder’s sole discretion, and (2) if Note B-1 is included in a Securitization, Rating Agency Confirmation from the Rating Agencies rating the related loan specific certificates, the Note B-1 Holder and the Note B-2 Holder shall not Transfer all or any portion of its respective Note to the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party and any such Transfer shall be absolutely null and void and shall vest no rights in the purported transferee. The Note B-1 Holder and the Note B-2 Holder agree that the transferring Noteholder will pay the reasonable documented expenses of the non-transferring Noteholder (including all expenses of the Master Servicer and the Special Servicer) in

 

 

connection with any such Transfer. The Agent shall provide two (2) Business Days prior written notice to each Rating Agency of any Transfer of any Note.

 

(b)       Notwithstanding the foregoing, the Note B-1 Holder and the Note B-2 Holder shall have the right, without the need to obtain the consent of the Note A Holder or any other Person, to Transfer 49% or less (in the aggregate) of its interest in its Note to any Person; provided that any such Transfer shall be made in accordance with the other terms of this Section 19.

 

(c)       All Transfers of Note B-1 and Note B-2, other than transfer of a participation interest in any such Note, under Sections 19(a) and (b) shall be made upon written notice to the Note A Holder not later than the date of such Transfer, and each transferee shall (i) execute an assignment and assumption agreement whereby such transferee represents that it is a Qualified Transferee (except in the case of a transfer of less than 49% of Note B-1 or Note B-2) or that the applicable consent and/or confirmation described in Section 19(a) has been obtained and assumes all or a ratable portion, as the case may be, of the obligations of the Note B-1 Holder or the Note B-2 Holder, as applicable, hereunder with respect to the applicable Note from and after the date of such assignment (or, in the case, of a pledge, collateral assignment or other encumbrance made in accordance with Section 19(g) by the Note B-1 Holder or the Note B-2 Holder of Note B-1 or Note B-2, as applicable, solely as security for a loan to the Note B-1 Holder or the Note B-2 Holder, as applicable, made by a third-party lender whereby such Noteholder remains fully liable under this Agreement, on or before the date on which such lender succeeds to the rights of the Note B-1 Holder or the Note B-2 Holder, as applicable, by foreclosure or otherwise, such third-party lender executes an agreement that such lender shall be bound by the terms and provisions of this Agreement and the obligations of the Note B-1 Holder or the Note B-2 Holder, as applicable, hereunder) and (ii) agree in writing to be bound by the Servicing Agreement, unless the Servicing Agreement is not then in effect with respect to the Mortgage Loan, in which event the parties will enter into or agree to be bound by any replacement servicing agreement therefor in accordance with the provisions hereof.

 

(d)       Upon the consummation of a Transfer of all or any portion of Note B-1 or Note B-2 in accordance with this Agreement, the transferring Person shall be released from all liability arising under this Agreement with respect to the transferred Note (or the portion thereof that was the subject of such Transfer), for the period after the effective date of such Transfer (it being understood and agreed that the foregoing release shall not apply in the case of a sale, assignment, transfer or other disposition of a participation interest in a Note as described in clause (e) below). In connection with any such permitted transfer of a portion of Note B-1 or Note B-2 and for all purposes of this Agreement, the Note A Holder need only recognize the majority holder of Note B-1 or Note B-2, as applicable, for purposes of notices, consents and other communications between the Note A Holder and such majority holder of Note B-1 or Note B-2, as applicable, shall be the only Person authorized hereunder to exercise any rights of the Note B-1 Holder or the Note B-2 Holder under this Agreement. The majority holder of Note B-1 or a majority holder of Note B-2 may from time to time designate any other Person as an additional party entitled to receive notices, consents and other communications and/or to exercise rights on behalf of such Noteholder hereunder by delivering written notice thereof to the Note A Holder, and, from and after delivery of such notice, such designee shall be so authorized

 

 

hereunder and shall be the only party entitled to receive such notices, consents and such other communications and/or to exercise such rights.

 

(e)         In the case of any sale, assignment, transfer or other disposition of a participation interest in a Note, (i) such Noteholder’s obligations under this Agreement shall remain unchanged, (ii) such Noteholder shall remain solely responsible for the performance of such obligations, (iii) the other Noteholders and any Persons acting on its behalf shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and the Servicing Agreement, and (iv) all amounts payable hereunder shall be determined as if such Noteholder had not sold such participation interest; provided, however, that if the applicable participant is a Qualified Transferee (and delivers to the other Noteholder a certification from an authorized officer confirming its status as a Qualified Transferee), such Noteholder, by written notice to the other Noteholder, may delegate to such participant such Noteholder’s right to exercise the rights of the Controlling Noteholder hereunder and under the Servicing Agreement; provided, further, however, that upon the occurrence of a Control Appraisal Period with respect to Note B-1 or Note B-2, as applicable, the aforesaid delegation of rights shall terminate and be of no further force and effect.

 

(f)          The Note A Holder shall have the right to Transfer all or any portion of Note A without the prior consent of any Noteholder except that, the Note A Holder shall not Transfer all or any portion of Note A to the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party and any such Transfer to the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party shall be absolutely null and void and shall vest no rights in the purported transferee.

 

(g)         Prior to a Control Appraisal Period, the Note A Holder shall not be permitted to transfer (i) all or any portion of Note B-1 without the prior consent of the Note B-1 Holder or (ii) all or any portion of Note B-2 without the prior consent of the Note B-2 Holder. If a Control Appraisal Period has occurred and is continuing, if the Mortgage Loan is a Defaulted Loan, the Note A Holder (or the Special Servicer acting on its behalf) shall have the right to sell Note B-1 and Note B-2 together with Note A, without the Note B-1 Holder’s or the Note B-2 Holder’s consent, subject to satisfaction of the following conditions:

 

(1)       the Special Servicer has delivered to the Note B-1 Holder and the Note B-2 Holder: (a) at least fifteen (15) Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least ten (10) days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale, (c) at least ten (10) days prior to the proposed sale date, a copy of the most recent Appraisal for the Mortgage Loan, and any documents in the Servicing File reasonably requested by the Note B-1 Holder or the Note B-2 Holder that are material to the sale price of the Mortgage Loan and (d) until the sale is completed and a reasonable period of time (but no less time than is afforded to other offerors and the Controlling Class Representative (as such term is defined in the Servicing Agreement)) prior to the proposed sale date, all information and other documents being provided to other

 

 

offerors and all leases or other documents that are approved by any Servicer in connection with the proposed sale;

 

(2)       all offers are to be submitted to the Trustee in writing;

 

(3)       whether any cash offer constitutes a fair price for the Notes shall be determined by the Trustee; provided, that no offer from an Interested Person (as defined in the Servicing Agreement) shall constitute a fair price unless (a) it is the highest offer received and (b) at least two bona fide other offers are received from independent third parties;

 

(4)       in determining whether any offer received represents a fair price for the Notes, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Servicing Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal;

 

(5)       the Trustee may conclusively rely on the opinion of an Independent (as defined in the Servicing Agreement) appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Noteholders in connection with making such determination; and

 

(6)       the Note B-1 Holder and/or the Note B-2 Holder shall be permitted to submit an offer at any sale of the Mortgage Loan unless such Person is the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party.

 

(h)          Notwithstanding anything to the contrary contained herein, each Noteholder may pledge or transfer (a “Pledge”) its Note to any entity (other than the Mortgage Loan Borrower or any Affiliate thereof) that has extended a credit or repurchase facility to such Noteholder and that, in each case, is either a Qualified Transferee or a financial institution whose long-term unsecured debt is rated at least “A” (or the equivalent) or better by each Rating Agency (a “Note Pledgee”), or to a Person with respect to which a Rating Agency Confirmation has been obtained, on terms and conditions set forth in this Section 19(h), it being further agreed that a financing provided by a Note Pledgee to a Noteholder or any Affiliate that Controls such Noteholder that is secured by such Noteholder’s interest in its respective Note and is structured as a repurchase arrangement, shall qualify as a “Pledge” hereunder, provided that a Note Pledgee that is not a Qualified Transferee may not take title to the pledged Note without (a) prior to Securitization or Note A or Note B-1, the consent of each other Noteholder and (b) after Securitization of Note A and/or Note B-1, Rating Agency Confirmation. Upon written notice, if any, by the pledging Noteholder to the other Noteholders and the Servicer that a Pledge has been effected (including the name and address of the applicable Note Pledgee), the other Noteholders agree to acknowledge receipt of such notice and thereafter agrees: (i) to give such Note Pledgee written notice of any default by the pledging Noteholder in respect of its obligations under this Agreement of which default such Noteholder has actual knowledge and which shall be given simultaneously with the giving of such notice to the pledging Noteholder; (ii) to allow such Note Pledgee a period of ten (10) Business Days to cure a default by the pledging Noteholder in

 

 

respect of its obligations to any other Noteholder hereunder, but such Note Pledgee shall not be obligated to cure any such default; (iii) that no amendment, modification, waiver or termination of this Agreement shall be effective against such Note Pledgee without the written consent of such Note Pledgee, which consent shall not be unreasonably withheld, conditioned or delayed and which consent shall be deemed to be given if Note Pledgee shall fail to respond to any request for consent to any such amendment, modification, waiver or termination within 10 Business Days after request thereof; (iv) that such other Noteholders shall accept any cure by such Note Pledgee of any default of the pledging Noteholder which such pledging Noteholder has the right to effect hereunder, as if such cure were made by such pledging Noteholder; (v) that such other Noteholder or any Servicer shall deliver to Note Pledgee such estoppel certificate(s) as Note Pledgee shall reasonably request, provided that any such certificate(s) shall be in a form reasonably satisfactory to such other Noteholder; and (vi) that, upon written notice (a “Redirection Notice”) to the other Noteholders and any Servicer by such Note Pledgee that the pledging Noteholder is in default, beyond any applicable cure periods with respect to the pledging Noteholder’s obligations to such Note Pledgee pursuant to the applicable credit agreement or other agreement relating to the Pledge between the pledging Noteholder and such Note Pledgee (which notice need not be joined in or confirmed by the pledging Noteholder), and until such Redirection Notice is withdrawn or rescinded by such Note Pledgee, Note Pledgee (or at any time that the pledging Noteholder otherwise directs that such payments be made to Note Pledgee pursuant to a separate notice) shall be entitled to receive any payments that any Noteholder or Servicer would otherwise be obligated to pay to the pledging Noteholder from time to time pursuant to this Agreement or any Servicing Agreement. Any pledging Noteholder hereby unconditionally and absolutely releases the other Noteholders and any Servicer from any liability to the pledging Noteholder on account of such other Noteholder’s or Servicer’s compliance with any Redirection Notice believed by any Servicer or such other Noteholder in good faith to have been delivered by a Note Pledgee. Note Pledgee shall be permitted to exercise fully its rights and remedies against the pledging Noteholder (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law, the pledge agreement, repurchase agreement or similar agreement between the pledging Noteholder and the Note Pledgee and this Agreement. In such event, or if the pledging Noteholder otherwise assigns its interests to the Note Pledgee, the other Noteholders and any Servicer shall recognize such Note Pledgee (and any transferee other than the Mortgage Loan Borrower or any Affiliate thereof that is also a Qualified Transferee at any foreclosure or similar sale held by such Note Pledgee or any transfer in lieu of foreclosure), and its successor and assigns, as the successor to the pledging Noteholder’s rights, remedies and obligations under this Agreement, and any such Note Pledgee or Qualified Transferee shall assume in writing the obligations of the pledging Noteholder hereunder accruing from and after such Transfer (i.e., realization upon the collateral by such Note Pledgee) and agrees to be bound by the terms and provisions of this Agreement. The rights of a Note Pledgee under this Section 19(h) shall remain effective as to any Noteholder (and any Servicer) unless and until such Note Pledgee shall have notified any such Noteholder (and any Servicer, as applicable) in writing that its interest in the pledged Note has terminated.

 

(i)        Notwithstanding any provisions herein to the contrary, if a conduit (“Conduit”) which is not a Qualified Transferee provides financing to a Noteholder then such Noteholder shall have the right to grant a security interest in its Note to such Conduit notwithstanding that such Conduit is not a Qualified Transferee, if the following conditions are satisfied:

 

 

(i)        The loan (the “Conduit Inventory Loan”) made by the Conduit to such Noteholder to finance the acquisition and holding of its Note will require a third party (the “Conduit Credit Enhancer”) to provide credit enhancement;

 

(ii)       The Conduit Credit Enhancer and conduit manager (if ▇▇▇▇▇’▇ rates the Securitization) will be a Qualified Transferee;

 

(iii)      Such Noteholder will pledge (or sell, transfer or assign as part of a repurchase facility) its interest in the applicable Note to the Conduit as collateral for the Conduit Inventory Loan;

 

(iv)      The Conduit Credit Enhancer and the Conduit will agree that, if such Noteholder defaults under the Conduit Inventory Loan, or if the Conduit is unable to refinance its outstanding commercial paper even if there is no default by such Noteholder, the Conduit Credit Enhancer will purchase the Conduit Inventory Loan from the Conduit, and the Conduit will assign the pledge of such Noteholder’s Note to the Conduit Credit Enhancer; and

 

(v)       Unless the Conduit is in fact then a Qualified Transferee, the Conduit will not, without obtaining the consent of each other Noteholder, have any greater right to acquire the interests in the Note pledged by such Noteholder, by foreclosure or otherwise, than would any other purchaser that is not a Qualified Transferee at a foreclosure sale conducted by a Note Pledgee.

 

Section 20.     Registration of Transfer. In connection with any Transfer of a Note (but excluding any Note Pledgee unless and until it realizes on its Pledge), except for transfer of a participation interest, a transferee shall execute an assignment and assumption agreement as described in Section 19(c) whereby such transferee assumes all of the obligations of the applicable Noteholder hereunder with respect to such Note thereafter accruing and agrees to be bound by the terms of this Agreement, including the restriction on Transfers set forth in Section 19, from and after the date of such assignment. Notwithstanding the preceding sentence, a Trustee shall not be required to execute an assignment and assumption agreement in connection with any Transfer of a Note if the obligations are assumed pursuant to the Securitization Servicing Agreement. No transfer of a Note may be made unless it is registered on the Note Register, and the Agent shall not recognize any attempted or purported transfer of any Note in violation of the provisions of Section 19 and this Section 20. Any such purported transfer shall be absolutely null and void and shall vest no rights in the purported transferee. Each Noteholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Agent and any other Noteholder against any liability that may result if the transfer is not made in accordance with the provisions of this Agreement. Upon a Securitization of Note A, the Certificate Administrator shall automatically become and be the Agent.

 

Section 21.     Registration of the Notes. The Agent shall keep or cause to be kept at the Agent Office books (the “Note Register”) for the registration and transfer of the Notes. The Agent shall serve as the initial Note registrar and the Agent hereby accepts such appointment. The names and addresses of the holders of the Notes, the principal amount (and stated interest) of the Notes owing to each Noteholder and the names and addresses of any

 

 

transferee of any Note of which the Agent has received notice, in the form of a copy of the assignment and assumption agreement referred to in Section 19(c), shall be registered in the Note Register. The Person in whose name a Note is so registered shall be deemed and treated as the sole owner and holder thereof for all purposes of this Agreement, except in the case of the Initial Note A Holder, the Initial Note B-1 Holder and the Initial Note B-2 Holder who may hold their Notes through a nominee. Upon request of a Noteholder, the Agent shall provide such party with the names and addresses of the Noteholders. To the extent another party is appointed as Agent hereunder, each Noteholder hereby designates such person as its agent under this Section 21 solely for purposes of maintaining the Note Register.

 

Section 22.     Statement of Intent. The Agent and each Noteholder intend that the Notes be classified and the arrangement hereby be maintained, in a manner consistent with rules applicable to a grantor trust under subtitle A, chapter 1, subchapter J, part I, subpart E of the Code that is a fixed investment trust within the meaning of Treasury Regulation §301.7701-4(c), and the parties will not take any action inconsistent with such classification. It is neither the purpose nor the intent of this Agreement to create a partnership, joint venture, “taxable mortgage pool” or association taxable as a corporation among the parties.

 

Section 23.     No Pledge. This Agreement shall not be deemed to represent a pledge of any interest in any Mortgage Loan by the Note A Holder to the Note B-1 Holder or the Note B-2 Holder, as applicable. Except as otherwise provided in this Agreement and the Servicing Agreement, neither the Note B-1 Holder nor the Note B-2 Holder shall have any interest in any property taken as security for any Mortgage Loan, provided, however, that if any such property or the proceeds of any sale, lease or other disposition thereof shall be received, then the Note B-1 Holder and/or the Note B-2 Holder, as applicable, shall be entitled to receive its share of such application in accordance with the terms of this Agreement and/or the Servicing Agreement.

 

Section 24.     Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

 

Section 25.     Submission To Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:

 

(a)       SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE

 

 

▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, AND APPELLATE COURTS FROM ANY THEREOF;

 

(b)       CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;

 

(c)       AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH A PARTY HEREIN SHALL HAVE BEEN NOTIFIED; AND

 

(d)       AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO ▇▇▇ IN ANY OTHER JURISDICTION.

 

Section 26.     Modifications; Amendment. This Agreement shall not be modified, cancelled or terminated except by an instrument in writing signed by the parties hereto (other than as set forth in Section 5(c)) and, after Securitization, any modification that materially affects the rights of the Note A Holder and/or, if Note B-1 is included in a Securitization, the Note B-1 Holder shall be subject to Rating Agency Confirmation, except that no Rating Agency Confirmation shall be required in connection with a modification to cure any ambiguity or to correct or supplement any provision herein that may be defective or inconsistent with any other provisions herein or with the Servicing Agreement.

 

Section 27.     Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. Each of the Master Servicer, Special Servicer, and related Trustee is an intended third-party beneficiary of this Agreement. Except as provided herein, none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto. Subject to Section 19, each Noteholder may assign or delegate its rights or obligations under this Agreement. Upon any such assignment, the assignee shall be entitled to all rights and benefits of the applicable Noteholder hereunder, including, without limitation, the right to make further assignments.

 

Section 28.     Counterparts. This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart of this Agreement.

 

Section 29.     Captions. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to

 

 

summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of this Agreement.

 

Section 30.     Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable laws, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

 

Section 31.     Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and negotiations between the parties.

 

Section 32.     Withholding Taxes.

 

(a)       If the Note A Holder or the Mortgage Loan Borrower shall be required by law to deduct and withhold Taxes from interest, fees or other amounts payable to a Noteholder with respect to the Mortgage Loan as a result of such Noteholder constituting a Non-Exempt Person, the Note A Holder, in its capacity as servicer, shall be entitled to do so with respect to such Note B-1 Holder’s or such Note B-2 Holder’s interest in such payment (all withheld amounts being deemed paid to such Noteholder), provided that the Note A Holder shall furnish such Noteholder with a statement setting forth the amount of Taxes withheld, the applicable rate and other information which may reasonably be requested for purposes of assisting such Noteholder to seek any allowable credits or deductions for the Taxes so withheld in each jurisdiction in which such Noteholder is subject to tax.

 

(b)       Each of the Note B-1 Holder and the Note B-2 Holder shall and hereby agrees to indemnify the Note A Holder against and hold the Note A Holder harmless from and against any Taxes, interest, penalties and reasonable attorneys’ fees and disbursements arising or resulting from any failure of the Note A Holder (or the Servicer on its behalf) to withhold Taxes from payment made to the Note B-1 Holder or the Note B-2 Holder in reliance upon any representation, certificate, statement, document or instrument made or provided by such Note B-1 Holder or Note B-2 Holder to the Note A Holder in connection with the obligation of the Note A Holder to withhold Taxes from payments made to such Note B-1 Holder or Note B-2 Holder, it being expressly understood and agreed that the Note A Holder shall be absolutely and unconditionally entitled to accept any such representation, certificate, statement, document or instrument as being true and correct in all respects and to fully rely thereon without any obligation or responsibility to investigate or to make any inquiries with respect to the accuracy, veracity, correctness or validity of the same.

 

(c)       Contemporaneously with the execution of this Agreement and from time to time as reasonably requested by the Note A Holder or Servicer during the term of this Agreement, each of the Note B-1 Holder and the Note B-2 Holder shall deliver to the Note A Holder or Servicer, as applicable, evidence satisfactory to the Note A Holder substantiating whether such Noteholder is a Non-Exempt Person and whether the Note A Holder is obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or

 

 

otherwise under this Agreement. Without limiting the effect of the foregoing, (i) if the Note B-1 Holder or the Note B-2 Holder is created or organized under the laws of the United States, any state thereof or the District of Columbia, it shall satisfy the requirements of the preceding sentence by furnishing to the Note A Holder an Internal Revenue Service Form W-9 and (ii) if the Note B-1 Holder or the Note B-2 Holder is not created or organized under the laws of the United States, any state thereof or the District of Columbia, and if the payment of interest or other amounts by the Mortgage Loan Borrower is treated for United States income tax purposes as derived in whole or part from sources within the United States, such Noteholder shall satisfy the requirements of the preceding sentence by furnishing to the Note A Holder Internal Revenue Service Form W-8ECI, Form W-8IMY (with appropriate attachments) or Form W-8BEN or Form W-8BEN-E, as applicable, or successor forms, as may be required from time to time, duly executed by such Noteholder. The Note A Holder shall not be obligated to make any payment hereunder with respect to the Note B-1 Holder or the Note B-2 Holder in respect of the Note B-1 or otherwise until the Note B-1 Holder or the Note B-2 Holder shall have furnished to the Note A Holder the requested forms, certificates, statements or documents.

 

Section 33.     Custody of Mortgage Loan Documents. The originals of all of the Mortgage Loan Documents (other than Note B-1 and Note B-2) shall be held by the Note A Holder (or a custodian acting on behalf of the Note A Holder) on behalf of the registered holders of the Notes. Notwithstanding anything to the contrary in this Agreement, upon a Securitization of Note A, the originals of all of the Mortgage Loan Documents (other than Note B-1 and Note B-2) shall be held by the Custodian (as defined in the Securitization Servicing Agreement).

 

Section 34.     Notices. All notices required hereunder shall be given by (i) telephone (confirmed promptly in writing) or shall be in writing and personally delivered, (ii) sent by facsimile transmission (during business hours) if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service (charges prepaid), (iii) reputable overnight delivery service (charges prepaid) or (iv) certified United States mail, postage prepaid return receipt requested, and addressed to the respective parties at their addresses set forth on Exhibit B hereto, or at such other address as any party shall hereafter inform the other party by written notice given as aforesaid. All written notices so given shall be deemed effective upon receipt.

 

All notices and reports (including, without limitation, Asset Status Reports) required to be delivered hereunder by the Note A Holder (or the Servicer on its behalf) to the Controlling Noteholder (or its Controlling Noteholder Representative), or by the Controlling Noteholder (or its Controlling Noteholder Representative) to the Note A Holder (or the Servicer on its behalf), shall also be delivered by the applicable party to the other Noteholders.

 

Section 35.     Broker. Each Noteholder represents to each other that no broker was responsible for bringing about this transaction.

 

Section 36.     Certain Matters Affecting the Agent.

 

(a)       The Agent may request and/or rely upon and shall be protected in acting or refraining from acting upon any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 20;

 

 

(b)       The Agent may consult with counsel and any opinion of counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such opinion of counsel;

 

(c)       The Agent shall be under no obligation to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders pursuant to the provisions of this Agreement, unless it has received indemnity reasonably satisfactory to it;

 

(d)       The Agent or any of its directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act, shall not be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by the Agent to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;

 

(e)       The Agent shall not be bound to make any investigation into the facts or matters stated in any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 20; and

 

(f)        The Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys but shall not be relieved of its obligations hereunder.

 

Section 37.     Termination of Agent. The Agent may be terminated at any time upon ten (10) days prior written notice from the Note A Holder. In the event that the Agent is terminated pursuant to this Section 37, all of its rights and obligations under this Agreement shall be terminated, other than any rights or obligations that accrued prior to the date of such termination.

 

The Agent may resign at any time upon notice, so long as a successor Agent, reasonably satisfactory to the Noteholders, has agreed to be bound by this Agreement and perform the duties of the Agent hereunder. Natixis, as Initial Agent, may transfer its rights and obligations to the Servicer, as successor Agent, at any time without the consent of any Noteholder. Natixis, as Initial Agent, shall promptly and diligently attempt to cause such Servicer to act as successor Agent, and, if such Servicer declines to act in such capacity, shall promptly and diligently attempt to cause a similar servicer to act as successor Agent. The termination or resignation of such Servicer, as Servicer under the Servicing Agreement, shall be deemed a termination or resignation of such Servicer as Agent under this Agreement. Notwithstanding the to the contrary in this Agreement, upon a Securitization of Note A, the Certificate Administrator shall automatically become and be the Agent.

 

Section 38. Servicing of the Loan. Pursuant to the Servicing Agreement, the Master Servicer (whose identity may change from time to time as provided in the Servicing Agreement) will be appointed as the servicer of the Mortgage Loan and the Special Servicer (whose identity may change from time to time as provided in the Servicing Agreement) will be appointed as the special servicer of the Mortgage Loan, and the parties agree that the Master Servicer and Special Servicer will service the Mortgage Loan on behalf of each Noteholder pursuant to the Servicing Agreement and subject to the terms hereof. The Note A Holder shall

 

 

not enter into any amendment to any Servicing Agreement that would materially and adversely affect the rights or interests of the other Noteholders without obtaining such other Noteholders’ prior written consent which shall not be unreasonably withheld, conditioned or delayed.

 

Section 39. Conflict. To the extent of any inconsistency between the Servicing Agreement, on one hand, and this Agreement (without regard to any references in this Agreement to the effect that a given defined term shall have the meaning of such defined term or an analogous term in the Servicing Agreement), on the other, this Agreement shall control. Resizing. Notwithstanding any other provision of this Agreement, for so long as Natixis or an affiliate of Natixis (an “Original Entity”) is the owner of any Note (the “Owned Note”), such Original Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Mortgage Loan Borrower to execute amended and restated notes or additional notes (in either case, “New Notes”) reallocating the principal and/or interest of the Owned Note to such New Notes; or severing the Owned Note into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of the Owned Note provided that (i) the aggregate principal balance of all outstanding New Notes following such amendments is no greater than the aggregate principal of the Owned Note prior to such amendments, (ii) immediately after giving effect to such amendment, the weighted average interest rate of the Notes will be equal to the initial weighted average interest rate of the Notes immediately prior to such amendment, (iii) such reallocated or component notes shall be automatically subject to the terms of this Agreement, and (iv) the Original Entity holding the New Notes shall notify the other Noteholders, the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee in writing of such modified allocations and principal amounts. A New Note may be structured as a pari passu or senior/subordinate note. If the other Noteholders so request, the Original Entity holding the New Notes (and any subsequent holder of such Notes) shall execute a confirmation of the continuing applicability of this Agreement to the New Notes, as so modified. Except for the foregoing reallocation and for modifications pursuant to the Servicing Agreement (as discussed in Section 5), no Note may be modified or amended without the consent of its holder and the consent of the other Noteholders. In connection with the foregoing (provided the conditions set forth in (i) through (iv), as certified by the Original Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized to execute amendments to the Loan Agreement and this Agreement (or to amend and restate the Loan Agreement and this Agreement) on behalf of any or all of the Noteholders, as applicable, solely for the purpose of reflecting such reallocation of principal and/or interest. If a New Note is created out of Note A, the Initial Note A Holder shall designate which Note will be the Controlling Noteholder during a Control Appraisal Period.

 

[SIGNATURE PAGE FOLLOWS]

 

 

IN WITNESS WHEREOF, the Initial Noteholders have caused this Agreement to be duly executed as of the day and year first above written.

 

	NATIXIS REAL ESTATE CAPITAL LLC, as Initial Note A Holder and Initial Agent
	By:	/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
		Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
		Title:   Director
	By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
		Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
		Title:   Managing Director

 

Signature Page to Co-Lender Agreement

 

	NATIXIS REAL ESTATE CAPITAL LLC, as Initial Note B-1 Holder
	By:	/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
		Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
		Title:   Director
	By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
		Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
		Title:   Managing Director

 

Signature Page to Co-Lender Agreement

 

	NATIXIS REAL ESTATE CAPITAL LLC, as Initial Note B-2 Holder
	By:	/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
		Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
		Title: Director
	By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
		Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
		Title:   Managing Director

 

Signature Page to Co-Lender Agreement

 

 

EXHIBIT A

MORTGAGE LOAN SCHEDULE

 

A.       Description of Mortgage Loan:

 

Mortgage Loan:	Queens Place
Mortgage Loan Borrower:	MIR Queens Place Associates, LLC, a Delaware limited liability company
Date of the Mortgage Loan and the Mortgage:	April 12, 2018
Initial Principal Amount of Mortgage Loan:	$100,000,000
Location of Mortgaged Property:	Elmhurst, NY
Initial Maturity Date:	May 5, 2028

 

B.       Description of Notes:

 

Initial Note A Principal Balance:	$42,000,000.00
Initial Note B-1 Principal Balance:	$43,000,000.00
Initial Note B-2 Principal Balance	$15,000,000.00
Initial Note A Percentage Interest:	42%
Initial Note B-1 Percentage Interest:	43%
Initial Note B-2 Percentage Interest	15%
Note A Rate:	4.518703%
Note B-1 Rate:	4.518703%
Note B-2 Rate	8.00000%

 

 

EXHIBIT B

 

Initial Note A Holder:

NATIXIS REAL ESTATE CAPITAL LLC

Notice Address:

Natixis Real Estate Capital LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

 

with a copy to:

Natixis Real Estate Capital LLC
Office of Chief Operating Officer
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

 

with a copy to:

Natixis North America LLC
Office of the General Counsel
1251 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇

 

for legal notices, with a copy to:

▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

 

Initial Note B-1 Holder:

NATIXIS REAL ESTATE CAPITAL LLC

Notice Address:

Natixis Real Estate Capital LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

 

 

with a copy to:

Natixis Real Estate Capital LLC
Office of Chief Operating Officer
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

 

with a copy to:

Natixis North America LLC
Office of the General Counsel
1251 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇

 

for legal notices, with a copy to:

▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

 

Initial Note B-2 Holder:

NATIXIS REAL ESTATE CAPITAL LLC

Notice Address:

Natixis Real Estate Capital LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

 

with a copy to:

Natixis Real Estate Capital LLC
Office of Chief Operating Officer
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

 

with a copy to:

Natixis North America LLC
Office of the General Counsel
1251 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇

 

 

for legal notices, with a copy to:

 

 

EXHIBIT C

PERMITTED FUND MANAGERS

 

▇▇▇▇▇▇▇▇▇ Partners 

iStar Financial Inc. 

Capital Trust 

Archon Capital, L.P. 

Whitehall Street Real Estate Fund, L.P. 

The Blackstone Group 

Normandy Real Estate Partners 

Dune Real Estate Partners 

AllianceBernstein 

Rockwood 

RREEF Funds 

▇▇▇▇▇▇ Advisors 

Artemis Real Estate Partners 

Apollo Real Estate Advisors 

Colony Capital, Inc. 

Praedium Group 

Fortress Investment Group, LLC 

▇▇▇▇▇▇▇▇ Opportunity Funds 

Clarion Partners 

▇▇▇▇▇▇ Street Capital, LLC 

Starwood Financial Trust 

BlackRock, Inc. 

Eightfold Real Estate Capital, L.P. 

Rialto Capital Management, LLC 

Rialto Capital Advisors, LLC 

Raith Capital Partners, LLC 

Trawler Capital Management, LLC