Exhibit 4.16
Execution Version
CO-LENDER AGREEMENT
Dated as of June 4, 2019 by andamong
NATIXIS REAL ESTATE CAPITAL LLC
(Note A-1 Holder)
NATIXIS REAL ESTATE CAPITAL LLC
(Note A-2 Holder)
NATIXIS REAL ESTATE CAPITAL LLC
(Note A-3 Holder)
NATIXIS REAL ESTATE CAPITAL LLC
(Note A-4 Holder)
NATIXIS REAL ESTATE CAPITAL LLC
(Note A-5 Holder)
NATIXIS REAL ESTATE CAPITAL LLC
(Note A-6 Holder)
NATIXIS REAL ESTATE CAPITAL LLC
(Note A-7 Holder) and
NATIXIS REAL ESTATE CAPITAL LLC
(Note A-B Holder)
Ten Thousand Luxury Rental Tower, Los Angeles, California
TABLE OF CONTENTS
Page
Section 1. | Definitions;Conflicts | 2 |
Section 2. | Servicing | 26 |
Section 3. | PaymentsPrior to a Sequential PayEvent | 28 |
Section 4. | PaymentsFollowing aSequential Pay Event | 30 |
Section 5. | Administrationof the Mortgage Loan | 32 |
Section 6. | Appointmentof theControlling NoteholderRepresentative | 40 |
Section 7. | SpecialServicer | 42 |
Section 8. | PaymentProcedure | 43 |
Section 9. | LimitationonLiability of the Noteholders | 44 |
Section 10. | Bankruptcy | 44 |
Section 11. | CureRights of the Note A-B Holder | 45 |
Section 12. | PurchaseRights of the Senior Notes by the Note A-B Holder | 46 |
Section 13. | Representationsof the Note A-B Holder. | 47 |
Section 14. | Representationsof the Senior Noteholders | 48 |
Section 15. | Independent Analysis of the Note A-B Holder | 49 |
Section 16. | NoCreation of aPartnership or Exclusive PurchaseRight | 49 |
Section 17. | Nota Security | 49 |
Section 18. | OtherBusinessActivities of the Noteholders | 49 |
Section 19. | Saleof the Notes | 50 |
Section 20. | Registrationof Transfer | 54 |
Section 21. | Registration of the Notes | 54 |
Section 22. | Statementof Intent | 54 |
Section 23. | NoPledge | 54 |
Section 24. | GoverningLaw;Waiver of Jury Trial | 55 |
Section 25. | SubmissionTo Jurisdiction;Waivers | 55 |
Section 26. | Modifications;Amendment | 55 |
Section 27. | Successors andAssigns; Third PartyBeneficiaries | 56 |
Section 28. | Counterparts | 56 |
Section 29. | Captions | 56 |
Section 30. | Severability | 56 |
Section 31. | Entire Agreement | 56 |
Section 32. | WithholdingTaxes | 56 |
Section 33. | Custodyof MortgageLoan Documents | 57 |
Section 34. | Notices | 57 |
Section 35. | Broker | 58 |
Section 36. | CertainMattersAffecting the Agent | 58 |
Section 37. | Terminationof Agent | 58 |
Section 38. | Servicing of the Loan | 59 |
Section 39. | Conflict | 59 |
Section 40. | Resizing. | 59 |
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THIS CO-LENDER AGREEMENT (the“Agreement”), dated as of June 4,2019,by and among NATIXISREAL ESTATE CAPITAL LLC, aDelaware limited liabilitycompany(“Natixis”), having an address at 1251 Avenue of theAmericas, New York, New York 10020 (in itscapacityas theinitialowner of Note A-1, the“Initial Note A-1 Holder”, and in its capacity as theinitial agent, the “Initial Agent”), Natixis, having anaddress at 1251 Avenue ofthe Americas, New York, New York 10020 (in its capacity as the initial owner of Note A-2, the “Initial NoteA-2 Holder”), Natixis, having an address at 1251 Avenue of the Americas, NewYork, New York 10020 (in its capacityasthe initial owner ofNoteA-3, the “InitialNoteA-3Holder”), Natixis, havinganaddress at 1251 Avenue ofthe Americas, New York, New York 10020 (in its capacity as theinitial owner of Note A-4, the“Initial Note A-4 Holder”),Natixis,having anaddressat 1251 Avenue of theAmericas,New York, New York 10020 (in its capacity as theinitial owner ofNote A-5, the“Initial Note A-5 Holder”), Natixis, having an address at 1251 Avenue ofthe Americas, New York, New York 10020 (in its capacity as the initialownerofNote A-6, the “Initial NoteA-6 Holder”), Natixis, having anaddress at 1251 Avenue ofthe Americas, New York, New York 10020 (in its capacity as the initial owner of Note A-7, the “Initial NoteA-7 Holder”) and Natixis, having an address at1251Avenue of theAmericas,New York, New York 10020 (in its capacity as the initial owner ofNote A-B, the“Initial Note A-B Holder”).
W I T N E S S E TH:
WHEREAS, pursuant to theLoan Agreement (as defined herein)Natixisoriginated a certain loan (the“Mortgage Loan”) described onthe schedule attached hereto as Exhibit A (the “MortgageLoan Schedule”) to themortgage loanborrower described on the MortgageLoan Schedule (the “MortgageLoanBorrower”),which is(a) evidenced by (i) that certainPromissory Note A-1 in the original principalamountof $100,000,000.00 dated as of April 12,2019 (as amended,modifiedorsupplemented, “NoteA-1”) made by the Mortgage LoanBorrower infavorof theInitial NoteA-1 Holder, (ii)that certainPromissory Note A-2 inthe original principal amount of$35,000,000.00 dated as ofApril 12, 2019 (asamended,modifiedor supplemented, “Note A-2”)madeby the MortgageLoan Borrower infavorof the Initial Note A-2 Holder, (iii) that certainPromissory Note A-3 in the originalprincipal amount of $25,000,000.00 dated as of April 12, 2019 (asamended, modified orsupplemented,“Note A-3”)madeby the MortgageLoanBorrower infavorof the InitialNote A-3 Holder, (iv)thatcertain Promissory Note A-4 in theoriginal principal amount of$20,000,000.00 dated as of April 12, 2019 (asamended,modified orsupplemented,“Note A-4”)madebythe Mortgage Loan Borrower infavorof the Initial NoteA-4 Holder, (v)that certain Promissory Note A-5 in the original principalamount of $15,000,000.00 dated as of April 12, 2019 (asamended, modified orsupplemented,“Note A-5”)made by the MortgageLoanBorrower infavor of the Initial NoteA-5 Holder, (vi) that certainPromissory Note A-6 in the original principal amount of $5,000,000.00 dated as of April 12, 2019 (asamended, modified orsupplemented,“Note A-6”, togetherwith NoteA-1,NoteA-2, NoteA-3, NoteA-4and NoteA-5, the “Senior Note”)madeby the MortgageLoan Borrower infavorof the Initial NoteA-6 Holder, and (vii)that certain Promissory Note A-B in the principalamount of $150,000,000.00 dated as of April 12, 2019 (asamended, modified orsupplemented,the “Original NoteA-B”) made by the MortgageLoanBorrower infavorof theInitial NoteA-B Holder, and (b)secured by a certain first deed of trust
lien (as amended,modified orsupplemented, the “Mortgage”) on one ormore parcelsof,or estates in, real property located as described on the Mortgage LoanSchedule (collectively, the “Mortgaged Property”);
WHEREAS, Natixis haselected toamendand restate the OriginalNote A-B and split suchnote into (i) thatcertain Promissory Note A-7 intheoriginal principalamountof$20,000,000 dated as of May 13, 2019 (asamended, modified orsupplemented,“Note A-7”)made by the MortgageLoanBorrower infavor of the InitialNote A-7 Holder, and (ii) that certainPromissory Note A-B inthe principal amount of$130,000,000.00 dated as ofMay 13, 2019 (asamended, modified orsupplemented,“NoteA-B”) madeby the Mortgage Loan Borrower infavorof theInitialNoteA-B Holder (Note A-1,Note A-2,Note A-3,NoteA-4, NoteA-5,NoteA-6, NoteA-7 andNoteA-B,respectivelyand individually, each, a “Note” andcollectivelythe“Notes”);
WHEREAS, Natixis intends tosell, transfer and assign all ofits right, title andinterest inand toNote A-1 and NoteA-B to NatixisCommercial Mortgage Securities, LLC (“Depositor”), as depositor, pursuant to a Mortgage LoanPurchase Agreement dated as of June4, 2019, by and between Depositor, as purchaser, and Natixis, asseller, and Depositor,as purchaser, intends to transfer its right, title and interest in and toNote A-1 and NoteA-B to WellsFargo Bank, National Association, as trustee for theNatixis Commercial Mortgage SecuritiesTrust2019-10K under a pooling and servicingagreement, dated as ofJune 4, 2019 (the “NCMSTrust 2019-10K PSA”),amongNatixisCommercial Mortgage Securities, LLC, as depositor,KeyBankNationalAssociation, asmaster servicer and asspecial servicer andWellsFargo BankNational Association, as certificateadministrator (such sales,transfers andassignments,the “Note A-1 Securitization”);
WHEREAS, the InitialNote A-1Holder, theInitial Note A-2Holder, the Initial NoteA-3 Holder, theInitial Note A-4 Holder, the InitialNoteA-5 Holder,the Initial NoteA-6 Holder,the Initial A-7 Holderand theInitial NoteA-B Holder desire toenter into thisAgreement tomemorialize theterms under which they and theirsuccessors and assigns shall hold NoteA-1, NoteA-2,NoteA-3, NoteA-4, NoteA-5,NoteA-6, NoteA-7 and NoteA-B, respectively.
NOW,THEREFORE,in consideration of themutual covenantscontainedherein, and for other good and valuableconsideration,thereceiptandsufficiency ofwhich is hereby acknowledged, the partieshereto mutually agree as follows:
Section 1.Definitions; Conflicts. References to a“Section”, “preamble”or the “recitals” are, unless otherwise specified, to aSection, preamble or the recitals of thisAgreement. Capitalized terms used but nototherwise defined herein shall have themeaningassigned to such term or an analogous term in (i) prior to the Securitization Date, the ModelServicing Agreement and (ii)from andafter theSecuritization Date, theSecuritization Servicing Agreement. To the extent ofany inconsistency between thisAgreementand the ServicingAgreement, thetermsof thisAgreement shall control.Wheneverusedin thisAgreement, the followingterms shall have the respectivemeanings setforth below unless the context clearly requires otherwise.
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“AcceptableInsurance Default” shall have themeaning (i) prior to theSecuritizationDate,assigned tosuch term or ananalogous term in theModel Servicing Agreementand (ii)from and after the Securitization Date,assignedto such term or analogous term in theSecuritization ServicingAgreement.
“Acquiring KoreanTrust” shall have themeaningassigned to such term in the definition of “Qualified Transferee.”
“Additional Servicing Expenses”shall mean (a) allproperty protection advances, fees and/or expenses incurred by andreimbursable to anyServicer, Trustee,Operating Advisor orCertificate Administrator with regard tothe Mortgage Loanpursuant to theServicing Agreement, and (b) allinterest accrued on Advancesmadeby (x) anyServicer or Trustee with regard to theMortgage Loan inaccordance withthe terms of theServicing Agreement or (y) any Non-LeadServicer or Non-Lead Trustee with regard to aNon-Lead Note in accordance with the terms of the related Non-LeadSecuritization Servicing Agreement.
“AdvanceInterest Amount” shall mean interest payable on Advances, as specified in the Servicing Agreement or aNon-Lead Securitization Servicing Agreement, as applicable.
“Advance Rate” shall have themeaning assigned to such term or an analogous term in the ServicingAgreement.
“Advances” shall have themeaning assigned tosuch term or ananalogous term in the ServicingAgreementor aNon-Lead Securitization ServicingAgreement, as applicable.
“Affiliate” shall mean, withrespect to anyspecified Person, any other Person Controlling, Controlled by orunder common Control with suchspecified Person.
“Agent” shallmean the InitialAgent or suchPerson towhom theInitialAgent shall delegateits duties hereunder, and from and after the Securitization Date shallmean the MasterServicer in its role as“Companion Paying Agent” (orequivalent term) under the Securitization ServicingAgreement.
“Agent Office” shallmean thedesignatedoffice of theAgent in theState ofNew York, which office as of the date of thisAgreementis locatedat Natixis Real Estate Capital LLC, 1251 Avenue ofthe Americas, New York, New York 10020, and which isthe address to which notices to and correspondence with theAgent should be directed.The Agent may change the address of its designated office by notice to theNoteholders sent inaccordance with thisAgreement.
“Agreement”shallmean thisCo-Lender Agreement,the exhibitsand schedules hereto and allamendmentshereof andsupplements hereto.
“Appraisal” shall havethe meaning (i) prior tothe SecuritizationDate, assigned to such term or an analogous term in the Model ServicingAgreementand (ii)from andafter the Securitization Date, assigned to such term or an analogous term in theSecuritization Servicing Agreement.
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“Appraisal ReductionAmount”shallmean:
(A) prior to theSecuritization Date, after the occurrence ofanAppraisal Trigger Event, anamount (calculatedimmediately following thelater 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, withoutduplication, (i) the outstanding Principal Balance of the MortgageLoan asof theapplicable date of determination, (ii) tothe extentnot previously advancedby or on behalf of the MasterServiceror the Trustee,all unpaid interest on the MortgageLoanthrough themost recent Due Date prior tothe date ofdetermination (exclusive of any portion thereof thatrepresents Default Interest), (iii) all otheramounts (excluding principal,default interest, late charges, penalty charges, exit fees, Prepayment Premiums and anysimilar amounts) due and unpaidwith respect to the MortgageLoan,(iv) all relatedunreimbursed Advancesmadeby or on behalf of (plus all accrued and unpaid interest on such Advances (other thanUnliquidatedAdvances) payable to) the MasterServicer, the SpecialServicerand/or the Trustee with respect to MortgageLoan, (v) any other unpaidtrust fund expenses (excluding any costs that do notrelate directly to the MortgageLoan), and(vi) all currentlydue and unpaid real estate taxes andassessments, insurancepremiumsand, ifapplicable, ground rents, and any unfundedimprovementor otherapplicable reserves, inrespect of the related Mortgaged Property orREO Property, as the casemaybe (ineach case, net of anyamountsescrowedwith the Master Servicer or the SpecialServicerforsuch items);over
(b) anamount equal to the sum of: (i) the excess, if any, of(x)90% of the appraised value of the MortgagedProperty (or REO Property) asdetermined by theapplicable Appraisal or any letter updateof such Appraisal, over (y) the amount of any obligations secured by liens on such MortgagedProperty (or REO Property) that areprior to the lien of the Mortgage Loan;plus (ii) theamount of any EscrowPayments and/or reservefunds held by theMaster Servicer or theSpecial Servicer with respect to theMortgage Loan, the related Mortgaged Property or any related REO Property that arenot being held in respect of any real estatetaxesand assessments,insurance premiums or, ifapplicable, ground rents;plus (iii) the amount ofanyletter ofcredit constituting additional securityforthe Mortgage Loan and thatmay be applied towards the reduction of theprincipalbalance of the MortgageLoan;plus(iv) the amount ofany ThresholdEvent Collateralthen held by the Servicer; and
(B) from and after theSecuritization Date, themeaningassigned to such term or an analogous term inthe ServicingAgreement.
“Appraisal ReviewPeriod” shallhavethemeaning assigned tosuch term inSection 5(h)(ii).
“Appraisal Trigger Event” shallmean:
(i) prior tothe Securitization Date, theearliest of the dateon which the MortgageLoan: (a)becomes amodified Mortgage Loanfollowing theoccurrence of aServicing TransferEvent, (b)becomesanREO Loan, (c)with respect towhich areceiver orsimilar official is appointedand continues for thirty (30) days in such capacityin respect ofthe Mortgaged
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Property, (d) the Mortgage Loan Borrower becomes thesubject of bankruptcy, insolvencyor similar proceedings or, if suchproceedingsare involuntary,such proceedingsremain undismissed for sixty (60) days,(e) any MonthlyPayment(otherthan aBalloon Payment) becomesone hundredtwenty (120) days ormoredelinquent, or(f) the MortgageLoanBorrower fails tomake when due any BalloonPaymentand the MortgageLoan Borrower does not deliver to the Master Servicer or the SpecialServicer, on or beforethe due date of theBalloon Payment, a writtenand fully executed(subject only tocustomary final closing conditions) refinancing commitment from anacceptable lender andreasonably satisfactory inform and substance to the MasterServicer (and the MasterServicer shall promptly forward such commitment tothe SpecialServicer)whichprovides that such refinancing will occur within ninety (90) days after the date on which the Balloon Payment willbecome due (provided that if either such refinancing does not occur during thattime or the MasterServicerisrequired during thattime tomake any P&IAdvance in respect of theMortgage Loan, anAppraisal Trigger Event will occur immediately); and
(ii) from andafter theSecuritizationDate, themeaning assigned tosuch term or an analogous term in theSecuritization ServicingAgreement.
“Appraised-Out Holder” shall havethe meaning assigned to suchtermin Section 5(h)(i).
“Approved Servicer” shall havethe meaning assigned to suchterm in the definition of “Qualified Transferee.”
“Asset StatusReport”shall have themeaning assigned to suchterm or an analogous term in the ServicingAgreement.
“BalloonPayment”shall havethe meaning assigned to such term or an analogous term in the ServicingAgreement.
“BankruptcyCode”shallmean theUnited StatesBankruptcy Code, asamended fromtimetotime, any successorstatute orrule promulgated thereto.
“BusinessDay”shall have themeaning assigned to such term in theServicing Agreement.
“Certificate Administrator” shall mean the certificateadministrator under the ServicingAgreement, if any.
“CLO” shall have themeaning assigned to such term in thedefinitionof“QualifiedTransferee.”
“CLOAssetManager”shall mean, with respect to anySecuritizationVehicle that is aCLO,the entity that is responsible formanagingoradministeringaNote asan underlying asset of such Securitization Vehicle or, if applicable, as anasset of anyInterveningTrust Vehicle (including, withoutlimitation, the right to exercise anyconsentand control rights available to theholder of such Note).
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“Code” shallmeanthe Internal Revenue Code of 1986, asamended.
“Collection Account”shall mean the trustaccount oraccounts (including any sub- accounts) created andmaintained by the Servicer.
“Condemnation Proceeds” shallhave themeaningassigned to suchterm or an analogous term in the ServicingAgreement.
“Conduit” shall have themeaning assigned to such term inSection 19(h).
“Conduit CreditEnhancer” shall have themeaningassigned tosuch term inSection 19(h)(i).
“Conduit Inventory Loan” shall have themeaning assigned tosuchterm inSection 19(h)(i).
“Control”shall mean the possession, directly or indirectly, of the power to direct or cause the direction of themanagement or policies of anentity,whether through the ability toexercise voting power, by contract orotherwise, and the terms “Controlling” and “Controlled” havemeanings correlative to the foregoing.
“Control Appraisal Period” shall mean any period, with respectto the Mortgage Loan, if and for so long as:
(a) (I) (1) the initialNote A-BPrincipal Balanceminus (2) the sum (without duplication) of (x) anypayments of principal (whetheras principalprepayments or otherwise)allocated to, andreceived on, Note A-B after the date ofcreation of Note A-B,
(y) any Appraisal ReductionAmount for the Mortgage Loan that is allocated to Note A-B and (z) any losses realizedwith respect to the MortgagedPropertyor the Mortgage Loan that areallocated to NoteA-B,plus(3) the Threshold Event Collateral then held by the Servicer, is less than(II) twenty-five percent(25%) of theremainder of the (x) initial NoteA-BPrincipalBalance less (y) any payments of principal (whether asprincipal prepayments or otherwise)allocated to, and received by, theNote A-B Holder on Note A-B after the date ofcreation of Note A-B; or
(b)any interest inNote A-B isheldbythe Mortgage Borrower or Mortgage LoanBorrowerRelated Party, or the Mortgage Borrower orMortgage Loan Borrower Related Party wouldotherwise be entitled toexercisetherights of the Note A-B Holder as the Controlling Noteholder.
“Controlling Noteholder” shallmean as of any date ofdetermination(i) the NoteA-B Holder, unless aControl Appraisal Period has occurred and is continuing or (ii) if aControl AppraisalPeriod has occurred andis continuing the Note A-1 Holder.
At any time that aNote held by the Controlling Noteholder is included in aSecuritization, the rights of the “ControllingNoteholder” may be exercised by theholders of themajorityof the class of securities issued in such Securitization designated as the “controlling class” or such otherclass(es) otherwise assigned the rights to exercise therightsof the “Controlling Noteholder”
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hereunder, as and tothe extent provided in theServicing Agreement (and the applicable Servicing Agreement shallcontain limitations on therights of the Controlling Noteholder that canbeexercised by a certificate holder thatis theMortgage Loan Borrower or has certain relationships with the Mortgage Loan Borrower).
“Controlling NoteholderRepresentative”shallmean,withrespect to the MortgageLoan, the advisorappointed pursuant to Section 6(a).
“CreditRisk Retention Rule” shallmean Section 15G of theExchange Act as added bySection941 of the Dodd-Frank Act andimplementedbyRegulation RR (15 U.S.C.
§78o-11).
“Cure Period” shall have themeaning assigned to such term inSection 11(a).
“DBRS” shallmeanDBRS, Inc., and its successors in interest.
“Default Interest” shallmean interest on the MortgageLoan at a rateper annum
equal to the Note Default Interest Spread.
“Defaulted Loan” shall have themeaning assigned to suchterm or an analogous term in the ServicingAgreement.
“Defaulted MortgageLoan” shallhave the meaning assigned to such term or an analogous term in the ServicingAgreement.
“Defaulted MortgageLoan PurchasePrice”shallmean, thesum, without duplication, of (a) thePrincipal Balance of the Senior Notes, (b)accruedand unpaid interest on the SeniorNotes at the SeniorNoteRate, from the date as towhich interest was last paid infull by Mortgage Loan Borrower up to and including the end of the interestaccrual periodrelating to theMonthly Payment Datenext following thedate thepurchase occurred, (c) any other amounts due under the SeniorNotes, other thanPrepayment Premiums, default interest, late fees, exitfees and any othersimilarfees duewith respect to the SeniorNotes; provided that if the Mortgage LoanBorrower or aMortgage Loan Borrower RelatedParty isthe purchaser, the Defaulted MortgageLoan PurchasePriceshall includePrepayment Premiums, default interest, latefees,exit feesand any othersimilar fees duewith respect to theSenior Notes,(d) anyunreimbursed property protection or servicing Advances and any expensesincurred in enforcing the Mortgage LoanDocuments(including, withoutlimitation, servicing oradministrativeAdvances payable orreimbursable to any Servicer, and earned and unpaid specialservicing fees), (e) any accruedand unpaidAdvance InterestAmount, (f) (i) if the MortgageLoan Borrower or a MortgageLoanBorrowerRelated Party is thepurchaser or (ii) if theSenior Notes arepurchasedafter ninety (90) days aftersuch option firstbecomesexercisable pursuant toSection 12 of thisAgreement,any liquidation orworkout fees payable under the SecuritizationServicing Agreement and (g) any Recovered Costs notreimbursed previously to the Servicerfrom collections inrespect of theMortgage Loan. Ifthe Mortgage Loan is converted into aREOProperty, for purposes ofdetermining the Defaulted MortgageLoanPurchasePrice, interest will bedeemedto continue to accrue on each of the Senior Notes at the Senior Note Rate on the Senior NotePrincipalBalance, as if the MortgageLoan were not so converted. In no event shallthe Defaulted Mortgage Loan
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PurchasePriceinclude amounts due or payable to theNote A-BHolderexercising the purchase right under thisAgreement.
“Defaulted NotePurchaseDate” shall have themeaning assigned to such term in Section 12.
“DueDate”shall have themeaning assigned tosuchterm or ananalogous term in theServicing Agreement.
“EscrowPayment”shall have the meaningassigned to such term or ananalogousterm in the ServicingAgreement.
“Event of Default” shall have themeaning assigned tosuch term in theLoan Agreement.
“FirstNon-Lead Note” shallmean the first SeniorNote,other than Note A-1, that is included as part of thesecuritization of one or moremortgage loans.
“FirstNon-Lead Note ServicingAgreement”shallmean the “trustand servicing agreement”or the “pooling and servicingagreement” entered into inconnection with theFirst Non-Lead Senior NoteSecuritization.
“FirstNon-Lead Note Securitization” shallmeanthefirst sale by aNon-LeadSeniorNoteholder ofall or anyportion of aNon-Lead Senior Note to a depositorwhowill in turn include all or such portion(as applicable) of such Non-Lead Senior Note as part ofthe securitization of one or moremortgageloans.
“FirstNon-Lead Note Securitization Date” shallmeantheclosing date of the First Non-Lead Note Securitization.
“FirstNon-Lead Note Trust Fund” shallmeanthetrust formed pursuant to the FirstNon-LeadNote ServicingAgreement.
“Fitch” shallmeanFitch RatingsInc., and its successors in interest.
“Guarantor” shall havethe meaning assigned to such term in theMortgage Loan Documents.
“Initial Agent” shall have themeaning assigned to suchtermin thepreamble to thisAgreement.
“Initial Note A-1Holder”shall have themeaning assigned tosuch term in thepreamble to thisAgreement.
“Initial Note A-2Holder”shall have themeaning assigned tosuch term in thepreamble to thisAgreement.
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“Initial Note A-3Holder” shall have themeaningassigned tosuch term in thepreambleto thisAgreement.
“Initial Note A-4Holder” shall have themeaningassigned tosuch term in thepreambleto thisAgreement.
“Initial Note A-5Holder” shall have themeaningassigned tosuch term in thepreambleto thisAgreement.
“Initial Note A-6Holder” shall have themeaningassigned tosuch term in thepreambleto thisAgreement.
“Initial Note A-7Holder” shall have themeaningassigned tosuch term in thepreambleto thisAgreement.
“InitialNoteA-B Holder” shallhave themeaningassigned tosuch term in the preamble to thisAgreement.
“Initial Noteholders” shall mean, collectively, theInitial Note A-1 Holder, the Initial NoteA-2 Holder, theInitial NoteA-3 Holder, theInitial Note A-4 Holder, the InitialNote A-5 Holder, theInitial Note A-6 Holder, theInitial Note A-7 Holder and the InitialNoteA-BHolder.
“Insolvency Proceeding” shallmean any proceeding under Title11ofthe United StatesCode (11 U.S.C.Sec. 101etseq.)orany other insolvency, liquidation, reorganization or othersimilarproceedingconcerning theMortgage LoanBorrower, any action for the dissolution of the Mortgage LoanBorrower, any proceeding (judicialor otherwise) concerning theapplication of the assets ofthe Mortgage Loan Borrower for the benefit of itscreditors,theappointment of or any proceeding seeking theappointmentof atrustee, receiver or other similar custodian for all or anysubstantial part of theassets of the Mortgage Loan Borrower or any other action concerning theadjustment of the debts of the MortgageLoanBorrower, the cessation of business by the MortgageLoan Borrower, except following asale, transfer or other disposition of all orsubstantially all ofthe assets ofthe Mortgage LoanBorrower in atransaction permitted under the MortgageLoanDocuments;provided,however, thatfollowingany suchpermitted transaction affecting the titleto the Mortgaged Property, the Mortgage Loan Borrower for purposes of thisAgreementshall be definedto mean thesuccessor owner of theMortgaged Propertyfrom time totime asmay bepermittedpursuant to the MortgageLoan Documents; provided, further, however, that for thepurposes of thisdefinition, in the event that more than one entitycomprises the MortgageLoanBorrower, the term“Mortgage Loan Borrower” shall refer to any such entity.
“InsuranceProceeds”shall havethe meaningassigned to suchterm or an analogous term in the ServicingAgreement.
“InterestRate” shallhave themeaningassigned to such term or an analogous term in the Mortgage LoanDocuments.
“Interim ServicingAgreement”shallmean: NOT APPLICABLE.
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“InterveningTrust Vehicle” shall mean with respect to anySecuritizationVehicle that is aCLO, atrust vehicle or entity which holds any Note as collateralsecuring (in whole or in part) any obligation or security held by such SecuritizationVehicle as collateral for the CLO.
“Kroll” shallmeanKroll BondRating Agency, Inc., or itssuccessorininterest.
“LeadSecuritization” shall mean during the period (a)from and after the First Non-LeadNote Securitization, if any, and prior to theNote A-1Securitization, thetrustestablished under the FirstNon-Lead Note Securitization and(b)from and after the NoteA-1 Securitization, thetrustestablished under the Note A-1Securitization.
“Lead Senior Note” shallmean during the period (i) from andaftertheFirst Non- LeadNote Securitization, if any,and prior to the Note A-1 Securitization, theFirstNon-Lead Note and (ii) from and after theNote A-1 Securitization, Note A-1.
“Lead Senior Noteholder” shallmean the holder of the LeadSenior Note.
“LeadServicer” shallmean during the period (a)from andafter theFirstNon- LeadNote Securitization, if any, and prior to theNoteA-1Securitization, the servicer and/or special servicer designated under the First Non-LeadNote Servicing Agreement and (b) from andafter the NoteA-1 Securitization, theservicer and/or special servicer designated under the Note A-1 ServicingAgreement.
“LeadTrustee” shall mean during the period (a)fromand after theFirst Non- Lead Note Securitization, if any, andpriorto theNote A-1 Securitization, the trusteedesignatedunder the First Non-LeadNote Securitization and (b) from andafter the Note A-1 Securitization, the trustee designated underthe Note A-1 Securitization.
“Liquidation Proceeds”shall mean (i) prior to theSecuritizationDate, theamount (otherthan insurance proceeds,condemnation awards or amountsrequiredtobe paid to the MortgageLoan Borroweror otherPersons pursuant to the Mortgage LoanDocumentsor applicable law) received inconnection with (y) the liquidation of a SpeciallyServiced MortgageLoan through atrustee’s sale, foreclosure sale or otherwise or (z) asale of theMortgage Loan or anREO Property in accordancewiththisAgreement and (ii)from andafter theSecuritization Date, the meaning assigned to such term or an analogousterm in theSecuritizationServicingAgreement.
“LoanAgreement” shallmean that certain LoanAgreement, datedas ofApril 12, 2019, betweenNatixis, as lender,andSM 10000 Property, LLC, as borrower, asthe same may befurther amended, restated,renewed, extended,modifiedorsupplemented from time totime, subject to theterms hereof.
“Major Decision” shallmean:
(i) prior to theSecuritization Date:
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(a) any proposed or actual foreclosure upon or comparableconversion (which may includeacquisition of an REO Property) of the ownership of the MortgagedProperty;
(b) anymodification, consent to amodificationorwaiver of anymonetary term (other than latefees and Default Interest) ormaterial non-monetary term(including, withoutlimitation,thetiming ofpayments andacceptanceofdiscounted payoffs) of the MortgageLoanor any extension ofthe maturity date of theMortgage Loan, other than asexpressly permitted pursuant to thetermsof the MortgageLoan Documents;
(c) any exercise ofremedies under the MortgageLoan,including the acceleration of the Mortgage Loan orinitiation of anyproceedingsunder the MortgageLoan Documents or any acquisition oftheMortgagedProperty or any interest therein by foreclosure,deed-in-lieuofforeclosure, settlement orotherwise;
(d) any sale of the Mortgage Loan or REO Property for less than“par”;
(e) anydetermination to bring the PropertyoranREO Property intocompliance withapplicable environmental laws or tootherwise address hazardous materials located at theProperty or REO Property;
(f) any substitution or release of realproperty collateral for theMortgageLoan(other than substitutions or releases of immaterial and non-income producing real property collateral or in connection with acondemnation action) except, in eachcase, asexpressly permitted by theMortgage LoanDocuments;
(g) anydetermination notto enforce a “due-on-sale” or“due-on-encumbrance” clause(unlesssuchclause isnot exercisable under applicable law or such exercise is reasonably likely to resultin successful legal action by the Mortgage Loan Borrower);
(h) any transfer of the MortgageProperty or any portion of the Mortgage Property, or any transfer of any direct orindirect ownership interest in the Mortgage LoanBorrower to theextent the lender’s consent under theMortgage Loan Documents isrequired, except ineach caseas expressly permittedby the MortgageLoan Documents or in connection with a pending orthreatened condemnation;
(i) any consent to incurrence of additional debt bythe Mortgage Loan Borrower ormezzanine debt by a directorindirectparent of theMortgage LoanBorrower, including modification of thetermsof anydocument evidencingor securing any such additional debt and of any intercreditor or subordination agreement executed in connection therewith and any waiver of oramendment ormodification to theterms of any suchdocument oragreement,in each case to theextent thelender’s approval is required by the Mortgage LoanDocuments;
(j) releases of any escrow accounts, reserve accounts orletters of crediteachif held asperformance escrows or reserves other than thoserequired pursuant to thespecific terms of the MortgageLoan Documents and for which there is nolender discretion;
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(k) approval of thetermination, engagement orreplacementof anyproperty manager or parking manager,tothe extentthe lender’s approvalisrequired by the MortgageLoan Documents;
(l) anyacceptance of anassumption agreement releasing theMortgage Loan Borrower,Guarantor or other obligorfrom liability under theMortgageLoan or the MortgageLoan Documents other than pursuant to the specifictermsof the MortgageLoan and for which thereisno lender discretion;
(m) anydetermination ofan Acceptable Insurance Default under theMortgage LoanDocuments;
(n) any proposedmodification orwaiverof any provision of theMortgage LoanDocumentswithrespect to theMortgage Loan governing the types, nature oramount of insurance coverage required to be obtained andmaintained;
(o) approval ofcasualty/condemnation insurancesettlements,anydetermination to apply casualty proceeds orcondemnationawards to thereduction of the debt evidencedbytheMortgage Loan rather than tothe restoration of the Mortgaged Property other than pursuant to thespecific terms of the Mortgage Loan;
(p) the voting on any plan of reorganization, restructuring orsimilar planinthe bankruptcy of the Mortgage LoanBorrower or the MortgagedProperty;
(q) anydetermination by the Servicer or the SpecialServicertotransfer the MortgageLoan to theSpecial Servicer with respect to anyMortgage Loan default or Event of Default that isanticipated but has not yet occurred; and
(r) any release of the Mortgage LoanBorrower orofany guarantor orindemnitor from liability under the MortgageLoan Documents.
(ii) from andafter theSecuritizationDate, themeaning assigned tosuch term or an analogous term in theSecuritization ServicingAgreement.
“Master Servicer” shall have themeaning assigned to suchtermin theServicing Agreement.
“Master ServicerRemittanceDate”shall mean:
(a) withrespect to theLead Senior Note andNote A-B,the “Remittance Date” (or analogousterm) asdefined in the Servicing Agreement; and
(b) with respect to any Non-LeadSenior Note, the earlier of (a)the“Remittance Date”(or analogousterm) as defined in theServicing Agreement or (b) the firstBusiness Day after the “Determination Date” (oranalogous term) as defined inthe Servicing Agreement,provided, however,that noremittanceisrequired to bemade until two BusinessDays after receipt ofthe scheduled MonthlyPayment withrespect to the MortgageLoan.
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“Model ServicingAgreement” shallmean theTrust and ServicingAgreementforthe NCMS 2019-NEMA transaction, among NatixisCommercial Mortgage Securities, LLC, as depositor,KeyBank NationalAssociation,asmaster servicer, Situs Holdings, LLC, as special servicer, WellsFargoBank, National Association, ascertificate administrator,Wells Fargo Bank, National Association, astrustee and WellsFargo Bank, National Association, as custodian.
“MonetaryDefault”shall have themeaning assigned to such term in Section 11(a).
“MonetaryDefaultNotice” shallhave themeaning assigned tosuch term in Section 11(a).
“Monthly DebtService Payment Amount” shall have themeaning assigned to such term or an analogousterm in the LoanAgreement.
“MonthlyPayment”shall have themeaning assigned to such term or an analogous term in the LoanAgreement.
“MonthlyPaymentDate” shallmean the“PaymentDate” (asdefined in the MortgageLoan Documents).
“Moody’s” shallmean Moody’s Investors Service, Inc., and itssuccessorsin interest.
“Morningstar” shallmean Morningstar Credit Ratings, LLC, or any of itssuccessors in interest.
“Mortgage” shall have themeaningassigned to such term in therecitals.
“Mortgage Loan” shall have themeaning assigned to such term inthe recitals.
“MortgageLoanBorrower” shallhavethemeaning assigned tosuchterm in the recitals.
“MortgageLoanBorrower Related Party” shall have the meaning(i) prior tothe Securitization Date,assignedtosuch term or ananalogous term in theModel Servicing Agreement and (ii)fromand afterthe Securitization Date, assigned to such term or an analogous term in theSecuritization ServicingAgreement.
“MortgageLoanDocuments” shallmeanthe Mortgage, theNotes, the Loan Agreement and all otherdocumentsnow or hereafter evidencing, securing or guaranteeing the MortgageLoan.
“MortgageLoanPrincipal Balance”shallmeanthe sum of theNote A-1Principal Balance, the Note A-2 Principal Balance, the Note A-3 Principal Balance, the Note A-4PrincipalBalance, the Note A-5 Principal Balance, the Note A-6 Principal Balance, the Note A-7PrincipalBalance and the Note A-B PrincipalBalance.
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“MortgageLoanRate” shallmean,as of any date ofdetermination, the weighted average of the SeniorNote Rate and the Note A-B Rate.
“MortgageLoanSchedule” shallmeantheSchedule attachedheretoasExhibitA,which schedule sets forth certain information regarding the MortgageLoanand the Notes.
“MortgagedProperty”shall have themeaning assigned to suchtermin the recitals.
“Natixis”shall mean Natixis Real Estate Capital LLC, and itssuccessors in interest.
“NetNoteA-B Rate” shallmean theNoteA-B Rateminus theServicing Fee Rate.
“NetSeniorNoteRate” shallmean the Senior Note Rate minus the Servicing Fee Rate.
“New Notes” shall have themeaning assigned to such term inSection 40.
“Non-ControllingSenior Noteholder” shallmeaneach of the NoteA-1 Holder (solely during suchtimeas theNote A-B Holder is the Controlling Noteholder),the Note A-2 Holder, the NoteA-3 Holder, theNoteA-4 Holder, the NoteA-5 Holder, the NoteA-6 Holder and the Note A-7 Holder.
“Non-ExemptPerson” shall mean any Person other than aPerson who iseither
(i) a U.S.Person or (ii) has on filewiththeAgent for therelevant year suchduly-executed form(s) orstatement(s)whichmay, fromtime totime,beprescribed by law and which, pursuant to applicable provisions of (A) anyincome tax treatybetween 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 the LeadSenior Noteholder to make suchpayments free of anyobligation or liability forwithholding.
“Non-Lead MasterServicer” shallmeanamaster servicerdesignated under aNon-Lead Securitization ServicingAgreement.
“Non-LeadSecuritization” shallmean any Securitization of aSenior Note in a Securitization Trustthat is not the Lead Securitization.
“Non-LeadSecuritization Servicing Agreement” shallmeantheservicing agreement for a Non-Lead Securitization.
“Non-LeadSenior Note” shallmean during the period (i) fromand after theFirst Non-Lead Note SecuritizationDate, if any, and prior to the Note A-1 Securitization Date, each of the SeniorNotes that is not included in theFirst Non-Lead Note Securitization, and (ii) on and after theNote A-1 Securitization Date, each of the SeniorNotes that isnot included in the Note A-1 Securitization.
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“Non-Lead Senior Noteholder” shall mean the holder of aNon-Lead Senior Note.
“Non-LeadServicer” shall mean the Non-Lead MasterServicer or Non-Lead SpecialServicer,as applicable.
“Non-Lead SpecialServicer”shallmeanthe special servicerdesignatedunder anyNon-Lead Securitization ServicingAgreement.
“Non-LeadTrustee” shall mean the trustee designated under anyNon-Lead Securitization ServicingAgreement.
“Non-MonetaryDefault”shall have themeaning assigned to such term in Section 11(d).
“Non-MonetaryDefaultCurePeriod”shall have themeaning assigned to such term in Section 11(d).
“Non-MonetaryDefaultNotice” shall have themeaning assigned to such term in Section 11(d).
“Note” shall have themeaning assigned tosuch term in thepreamble tothis Agreement.
“Note A-1” shall have themeaning assigned to such term in therecitals.
“Note A-1 Holder” shallmean the InitialNoteA-1 Holder, orany subsequent holder of Note A-1, together with itssuccessorsand assigns.
“Note A-1 PercentageInterest” shall meanafraction,expressed as apercentage,thenumeratorof which is theNote A-1 Principal Balance andthe denominator ofwhichis the MortgageLoanPrincipal Balance.
“Note A-1 Principal Balance” shallmean at anytimeofdetermination, the initial NoteA-1 Principal Balance setforth on the MortgageLoan Schedule, less anypayments of principal thereon received bythe Note A-1 Holder or reductions in suchamount pursuant toSection 3,4or 5, as applicable.
“Note A-1 ServicingAgreement” shallmean the “pooling and servicingagreement”or “trustandservicingagreement”entered into inconnection with the Note A-1 Securitization.
“Note A-1Securitization” shallmean thesale by theNote A-1 Holder of Note A-1 to a depositor who will in turninclude Note A-1 as part of the securitization of one or moremortgage loans.
“Note A-2” shall have themeaningassigned to such term in therecitals.
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“Note A-2 Holder” shallmean the InitialNoteA-2 Holder, orany subsequent holder of Note A-2, together with itssuccessorsand assigns.
“Note A-2 PercentageInterest” shall meanafraction,expressed as apercentage,thenumeratorof which is theNote A-2 Principal Balance andthe denominator ofwhichis the MortgageLoanPrincipal Balance.
“Note A-2Principal Balance”shall mean,at anytime ofdetermination, the initial NoteA-2 Principal Balance setforthon the MortgageLoan Schedule, less anypaymentsof principal thereon received bythe Note A-2 Holder or reductions in suchamount pursuant toSection 3,4or 5, as applicable.
“Note A-3” shall have themeaningassigned to such term in therecitals.
“Note A-3 Holder” shallmean the InitialNoteA-3 Holder, orany subsequent holder of Note A-3, together with itssuccessorsand assigns.
“Note A-3 PercentageInterest” shall meanafraction,expressed as apercentage,thenumeratorof which is theNote A-3 Principal Balance andthe denominator ofwhichis the MortgageLoanPrincipal Balance.
“Note A-3Principal Balance”shall mean,at anytime ofdetermination, the initial NoteA-3 Principal Balance setforthon the MortgageLoan Schedule, less anypaymentsof principal thereon received bythe Note A-3 Holder or reductions in suchamount pursuant toSection 3,4or 5, as applicable.
“Note A-4” shall have themeaningassigned to such term in therecitals.
“Note A-4 Holder” shallmean the InitialNoteA-4 Holder, orany subsequent holder of Note A-4, together with itssuccessorsand assigns.
“Note A-4 PercentageInterest” shall meanafraction,expressed as apercentage,thenumeratorof which is theNote A-4 Principal Balance andthe denominator ofwhichis the MortgageLoanPrincipal Balance.
“Note A-4Principal Balance”shall mean,at anytime ofdetermination, the initial NoteA-4 Principal Balance setforthon the MortgageLoan Schedule, less anypaymentsof principal thereon received bythe Note A-4 Holder or reductions in suchamount pursuant toSection 3,4or 5, as applicable.
“Note A-5” shall have themeaningassigned to such term in therecitals.
“Note A-5 Holder” shallmean the InitialNoteA-5 Holder, orany subsequent holder of Note A-5, together with itssuccessorsand assigns.
“Note A-5 PercentageInterest” shall meanafraction,expressed as apercentage,thenumeratorof which is theNote A-5 Principal Balance andthe denominator ofwhichis the MortgageLoanPrincipal Balance.
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“Note A-5Principal Balance”shall mean,at anytime ofdetermination, the initial NoteA-5 Principal Balance setforthon the MortgageLoan Schedule, less anypaymentsof principal thereon received bythe Note A-5 Holder or reductions in suchamount pursuant toSection 3,4or 5, as applicable.
“Note A-6” shall have themeaningassigned to such term in therecitals.
“Note A-6 Holder” shallmean the InitialNoteA-6 Holder, orany subsequent holder of Note A-6, together with itssuccessorsand assigns.
“Note A-6 PercentageInterest” shall meanafraction,expressed as apercentage,thenumeratorof which is theNote A-6 Principal Balance andthe denominator ofwhichis the MortgageLoanPrincipal Balance.
“Note A-6Principal Balance”shall mean,at anytime ofdetermination, the initial NoteA-6 Principal Balance setforthon the MortgageLoan Schedule, less anypaymentsof principal thereon received bythe Note A-6 Holder or reductions in suchamount pursuant toSection 3,4or 5, as applicable.
“Note A-7” shall have themeaningassigned to such term in therecitals.
“Note A-7 Holder” shallmean the InitialNoteA-7 Holder, orany subsequent holder of Note A-7, together with itssuccessorsand assigns.
“Note A-7 PercentageInterest” shall meanafraction,expressed as apercentage,thenumeratorof which is theNote A-7 Principal Balance andthe denominator ofwhichis the MortgageLoanPrincipal Balance.
“Note A-7Principal Balance”shall mean,at anytime ofdetermination, the initial NoteA-7 Principal Balance setforthon the MortgageLoan Schedule, less anypaymentsof principal thereon received bythe Note A-7 Holder or reductions in suchamount pursuant toSection 3,4or 5, as applicable.
“Note A-B” shall have themeaningassigned to such term in therecitals.
“Note A-B Holder” shallmean the InitialNoteA-B Holder, orany subsequent holder of Note A-B, togetherwith its successors and assigns.
“Note A-B PercentageInterest” shallmean afraction, expressed as apercentage,thenumerator of which is theNote A-B Principal Balance andthe denominator ofwhichis the MortgageLoan Principal Balance.
“Note A-BPrincipal Balance” shallmean,at anytime ofdetermination, the initial NoteA-B PrincipalBalance set forth on the MortgageLoan Schedule, less anypaymentsof principal thereon received by theNote A-B Holder or reductions insuch amount pursuant to Section 3,4or 5, as applicable.
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“Note A-B Rate” shallmeanthe Note A-B Rate setforth on theMortgageLoan Schedule.
“Note A-BRelativeSpread” shallmean the ratio of the NoteA-B Rate tothe MortgageLoan Rate.
“Note DefaultInterest Spread” shallmean theNote DefaultInterest Spread set forth on the MortgageLoanSchedule.
“NotePledgee”shall have themeaning assigned to such term inSection 19(g).
“Note Register” shall have themeaning assigned to such term inSection 21.
“Noteholder” shallmean any of theNote A-1 Holder, the NoteA-2 Holder, the NoteA-3 Holder, theNote A-4 Holder, the NoteA-5 Holder, the NoteA-6 Holder, theNote A-7 Holder and the Note A-B Holder, as applicable.
“Noteholder PurchaseNotice”hasthe meaning assigned to such term in Section 12.
“Operating Advisor”shall mean the operating advisor under theServicing Agreement, if any.
“OriginalEntity”shall have themeaning assigned to such term in Section 40.
“Original Note A-B” shallhave themeaning assigned to such termin the recitals.
“Owned Note” shall have themeaning assigned to such term inSection 40.
“P&IAdvance” shallhavethemeaning assigned to such term orananalogous term in the ServicingAgreement.
“Percentage Interest” shall mean, (i) withrespect to the Note A-1 Holder, the Note A-1Percentage Interest, (ii) withrespectto the Note A-2Holder, theNote A-2 PercentageInterest, (iii) withrespectto theNote A-3Holder, theNote A-3 Percentage Interest, (iv) with respect tothe Note A-4 Holder, the Note A-4Percentage Interest, (v) with respect to theNote A- 5 Holder,the Note A-5 PercentageInterest,(vi) withrespect to the Note A-6 Holder, the Note A- 6Percentage Interest, (vii) with respect to theNote A-7 Holder, theNoteA-7 Percentage Interest and(viii) with respect to theNote A-B Holder, the Note A-B Percentage Interest, as eachmay be adjustedfrom time totime.
“PermittedFund Manager”shall mean any Personthaton thedate ofdetermination is (i) one of the entities on Exhibit C attached hereto and made a part hereof or any other nationally-recognizedmanagerofinvestment funds investing in debt orequity interests relating tocommercial real estate, (ii) investing through afundwithcommitted capital of atleast $100,000,000 and (iii) not subject to a proceeding relating to the bankruptcy, insolvency, reorganization orrelief of debtors.
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“Person” shallmean any individual, corporation,limited liability company, partnership, jointventure, association, joint-stock company,trust, unincorporated organization orgovernment or any agency orpolitical subdivision thereof.
“Pledge” shall have themeaningassigned to such term inSection 19(g).
“Prepayment Premium” shallmean, with respect to the MortgageLoan,anyprepayment premium, spreadmaintenance premium, yieldmaintenance premium orsimilarfee required to be paid in connection with aprepayment of theMortgage Loan pursuant to the MortgageLoan Documents, including any exit fee.
“PrincipalBalance” shallmeanany of theNote A-1Principal Balance,theNoteA-2 Principal Balance, the Note A-3 Principal Balance, the NoteA-4 Principal Balance,theNote A-5 Principal Balance, the Note A-6 Principal Balance, the Note A-7 Principal Balance and/or the Note A-B Principal Balance, as applicable.
“QualifiedTransferee”shallmean each of:
(a) the InitialNoteholders;
(b) anyother Person that is anentity Controlled (as defined below) by, under common Control with orControlling of any of the Initial Noteholders; or
(c) one ormore of the following:
(i) a real estateinvestment bank, an insurance company, bank,savingsand loanassociation, investment bank, trustcompany, commercial credit corporation, pension plan,pension fund, pension fund advisoryfirm, mutual fund, real estateinvestment trust,governmental entity or plan, or
(ii) aninvestment company, money management firm or a “qualified institutional buyer”within themeaning ofRule144A under the SecuritiesAct of 1933, asamended,or an “accredited investor”within themeaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, asamended,or
(iii) aQualified Trustee(or inthe case of aCLO, asingle purpose bankruptcyremote entity that contemporaneously assignsor pledges the Note, or a participation interesttherein (oranyportion thereof) to aQualified Trustee) in connection with (a) asecuritization of, (b) the creation of collateralized debt obligations(“CLO”)secured by, or(c) afinancing through an “owner trust” of, aNote orany interest therein (any of the foregoing, a“Securitization Vehicle”); provided that (1) oneor more classes of securities issuedby such Securitization Vehicle isinitially rated atleast investment grade by twonationally recognized credit ratingagencies; (2) the special servicer of suchSecuritization Vehicle has a Required SpecialServicer Rating or is otherwise acceptable to the Rating Agencies rating eachSecuritization(such entity, an “Approved Servicer”) and suchApproved Servicer is required to service andadminister such Note or any
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interest therein in accordance with servicingarrangements for the assets held by theSecuritizationVehiclewhich require that such Approved Servicer act inaccordancewith a servicing standard notwithstanding anycontrary direction or instruction from any otherPerson; or (3) inthe case of aSecuritization Vehicle that is a CLO, theCLO Asset Manager and, if applicable, eachIntervening Trust Vehicle that is notadministered andmanaged by a CLO AssetManager that is a Qualified Transferee, are each a QualifiedTransferee under clauses(i),(ii), (iv) or(v) of this definition, or
(iv) aninvestment fund, limited liabilitycompany, limited partnership orgeneral partnership having capital and/orcapital commitments of atleast$100,000,000, inwhich(A) any Initial Noteholder, (B) a person that isotherwisea Qualified Transferee under clause (i), (ii) or (v) (withrespect to an institutionsubstantially similar to theentities referredto in clause (i) or (ii)above)or clause (d)below(withrespect toan entity Controlled by an entity referred to in clause (i), (ii) or (v)(withrespecttoan institutionsubstantially similar to the entities referred to in clause (i) or (ii) above)),or (C) aPermitted Fund Manager, acts as a general partner,managing member, or thefundmanagerresponsible for the day-to-daymanagement and operation of suchinvestment vehicle, or
(v) an institution substantiallysimilarto any of the foregoing,or
(vi) any Person that is otherwise a Qualified Transferee but isacting in an agency capacityinconnection with alending syndicate, so long asmore than fifty percent (50%) ofthelendersin the lending syndicate (byloan balance or committed loanamounts) are Qualified Transferees, or
(vii) aprivate trustestablished and authorized under the laws of the Republic of Korea (an “AcquiringKorean Trust”),so long as thebeneficiaries of, and owners of not less than 51% of the equityinterest in, theAcquiring Korean Trustare, directly orindirectly, Persons that are otherwise Qualified Transferees and satisfythe capital surplus/equity and total assetrequirements setforth below, and
in the caseof any entityreferred toinclause(c)(i), (ii),(iv)(B) or (v) of this definition, (x) such entity or parent hasat least $100,000,000 in capital/statutory surplusor shareholders’ equityincluding uncalled capital commitments (exceptwith respect to apension advisory firm, assetmanager orsimilarfiduciary) and at least $250,000,000 intotal assetsincludinguncalled capitalcommitments (innameor undermanagement), and (y) is regularlyengaged in the business of making orowning commercial real estate loans (orinterests therein) (or in the case of a pension advisoryfirm, assetmanagerorsimilar fiduciary, is regularly engaged inmanaging investments incommercial real estate loans) similar to the Mortgage Loan(or mezzanine loans withrespect thereto)or owning oroperating commercial realestate properties; provided that, in thecaseof the entity described in clause (iv)(B) above, therequirements of this clause (y)may be satisfied by a general partner,managing member, or thefund manager responsible for the day-to-daymanagementand operation of suchentity; or
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(d) any entityControlled by any oftheentitiesdescribed inclause (c) aboveor approved by the Rating Agencieshereunder as a QualifiedTransfereefor purposes of thisAgreement, or as to which theRatingAgencies have stated theywould not review such entity in connection withthe subject transfer; and
For purposes of thisdefinition only, “Control”meanstheownership, directly or indirectly, in the aggregate ofmorethan fifty percent (50%)of the beneficialownership interests of an entity and the possession,directly or indirectly, of thepower todirect orcause the direction of themanagement or policies of anentity, whether through the ability toexercise voting power, by contract or otherwise(“Controlled” and “Controlling” havethe meaning correlative thereto).
“Qualified Trustee” shall mean (i) a corporation, nationalbank, national banking association or atrust company, organized and doing businessunder the laws ofany state or the United States ofAmerica,authorized under such laws toexercise corporate trust powers and to acceptthe trust conferred, having acombined capital andsurplus of at least $100,000,000 and subject tosupervisionorexamination by federal or stateauthority,(ii) an institution insured by the Federal Deposit Insurance Corporation or (iii) aninstitutionwhose long-term senior unsecured debt is thenrated in one of the top two ratingcategories of each of theapplicable Rating Agencies.
“Rating Agencies” shallmean any of (a) S&P, (b) Moody’s,(c) Fitch, (d) DBRS,
(e) Krolland (f)Morningstar or, if any of such entities shall for any reason no longer perform the functions of a securities rating agency, any other nationallyrecognized statistical rating agency designated by a SeniorNoteholder;provided, however, that at anytime during which a Senior Note is an asset of aSecuritization,“Rating Agencies” or“RatingAgency” shall have themeaning assigned to such terminthe ServicingAgreement.
“Rating AgencyConfirmation” shall have themeaninggiventhereto or any analogoustermin the Securitization ServicingAgreement, including anydeemed Rating AgencyConfirmation.
“Recovered Costs” shallmean any amounts referred to inclauses(d) and/or (e) of thedefinition of “Defaulted MortgageLoanPurchasePrice” that, at thetimeofdetermination, had beenpreviouslypaid orreimbursed to anyServicer from sources other than collections on or in respect ofthe Mortgage Loan or the Mortgaged Property (including, withoutlimitation, from collections on or in respect ofloans other than the MortgageLoan).
“Redirection Notice” shall have themeaning assigned to suchtermin Section 19(g).
“REMIC” shallmean a real estatemortgage investmentconduitwithin themeaning of Section 860D(a) of the Code.
“REMICProvisions” shallmean provisions ofthe federal income tax law relating to real estatemortgage investment conduits, which appear atSections 860A through 860G of subchapter M of Chapter 1 of theCode, and related provisions, and regulations(includingany applicableproposed regulations) and rulingspromulgated thereunder, as the foregoingmay be in effect fromtimetotime.
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“REO Loan” shall have the meaning assigned to such term or ananalogous termin the Servicing Agreement.
“REOProperty”shallmean anyMortgagedProperty,title to whichhas been acquired by theServicer onbehalf ofthe Noteholders through foreclosure, deed in lieu offoreclosure or otherwise.
“RequiredSpecial Servicer Rating” shallmean with respect to aspecial servicer
(i) in the case ofFitch, a rating of “CSS3”, (ii) in the case ofS&P, such special servicer is on S&P’s SelectServicerList as a U.S.Commercial MortgageSpecialServicer, (iii) inthe case of Moody’s,withinthe twelve (12)month period prior to the date ofdetermination,such special servicer has acted asspecial servicer for one ormore loans included in acommercial mortgage loan securitization thatwasratedby Moody’s and Moody’s hasnotdowngraded or withdrawn the then-currentrating on anyclassofcommercial mortgage securities or placedanyclass of commercialmortgage securities onwatch citing the continuation of such special servicer as special servicer of such commercial mortgageloansas amaterial reason for such downgrade or withdrawal, (iv) in the case ofMorningstar, either (a) theapplicable replacementhas aspecial servicer ranking of atleast “MOR CS3” by Morningstar (ifranked by Morningstar) or (b) if not ranked by Morningstar, is currently acting as a specialservicer on a deal or transaction-level basis for all or a significant portion of the relatedmortgage loans inother CMBS transactions rated by any ofS&P,Moody’s, Morningstar,Fitch, DBRS or Krolland the trustee does not have actual knowledge that Morningstar has, and the replacement special servicer certifies thatMorningstar has not, with respect to any suchother CMBS transaction, qualified, downgraded or withdrawn its rating orratings on one ormoreclasses of such CMBS transaction citing servicing concerns of theapplicable replacementas thesole ormaterial factor insuch rating action, (v) in the case ofKroll, Kroll has not cited servicing concerns ofsuch specialserviceras the soleor material factor in anyqualification, downgrade or withdrawal ofthe ratings (or placement on “watch status” incontemplationof a ratings downgrade orwithdrawal)ofsecurities in a transaction serviced by suchspecial servicer prior to the time ofdetermination, and (vi) in thecase of DBRS, within the twelve (12) month period prior to the date of determination, such special servicer has acted as special servicerfor one ormore loans included in acommercial mortgage loan securitization thatwas rated by DBRS and DBRS has notdowngraded or withdrawn the then-currentratingon any class ofcommercial mortgage securitiesorplaced any class ofcommercial mortgage securities on “watchstatus” citing the continuation of such special servicer as specialservicer of suchcommercial mortgage loans as amaterial reason for such downgrade orwithdrawal (orplacementon “watch status” incontemplation of a ratings downgrade orwithdrawal).
“S&P” shallmeanS&P Global Ratings, and its successors ininterest.
“Securitization” shall mean one or more sales by a SeniorNoteholder of all or a portion of a Senior Note to adepositor, who will in turnincludesuch portion of such Senior Note as part of asecuritization of one or moremortgage loans.
“Securitization Date”shall mean the effective date on whichtheSecuritization of a Senior Note or portion thereof is consummated.
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“Securitization ServicingAgreement” shallmean during the period (i) from and after the First Non-LeadNote Securitization, ifany, and prior tothe Note A-1 Securitization, the FirstNon-Lead Note ServicingAgreement and (ii)fromand after theNote A-1Securitization,the NoteA-1 Servicing Agreement; provided that in theevent the LeadSenior Noteis no longer an asset ofthe trustfund created pursuant tothe Securitization Servicing Agreement, the term“Securitization Servicing Agreement” shall refer to thesubsequent servicing agreement enteredinto pursuant to Section 2.
“Securitization Trust”shall mean a trustformed pursuant to a Securitization in which a Senior Note isheld.
“Securitization Vehicle” shallhave themeaning assigned to suchterm inthe definition of “Qualified Transferee.”
“Senior Notes” shall have themeaning assigned to such term in the recitals.
“Senior Noteholder” shallmean the InitialNoteA-1 Holder, theInitial Note A-2 Holder, the Initial NoteA-3 Holder, the InitialNote A-4Holder,the InitialNote A-5 Holder, the Initial NoteA-6 Holder and the Initial NoteA-7 Holder or any subsequent holder of aSeniorNote.
“SeniorNote Percentage Interest” shallmeanafraction, expressed as a percentage, thenumeratorof which is the sum of the NoteA-1 Principal Balance, the Note A-2PrincipalBalance, theNote A-3 Principal Balance, the Note A-4Principal Balance, the Note A-5 Principal Balance,the Note A-6PrincipalBalance and the Note A-7 Principal Balance and thedenominator of which is theMortgage Loan Principal Balance.
“Senior NotePrincipal Balance” shall mean the sum of the NoteA-1 Principal Balance, the Note A-2 Principal Balance, the Note A-3 Principal Balance, the Note A-4PrincipalBalance,the Note A-5Principal Balance,the Note A-6Principal Balance and the NoteA-7 Principal Balance.
“Senior NoteRate” shallmean theSeniorNoteRate set forth inthe MortgageLoan Schedule.
“Senior NoteRelative Spread” shallmean the ratio of theSenior NoteRate tothe MortgageLoan Rate.
“Sequential Pay Event” shallmean any Event ofDefaultwithrespect to an obligation to paymoneydue under the MortgageLoan or anyotherEvent ofDefault that causes theMortgage Loan tobecome aSpecially Serviced Mortgage Loan (other than as a result of a foreseeable event)or any bankruptcy or insolvency eventthat constitutes an Event ofDefault.A Sequential Pay Event shall no longer exist to the extent it has beencured (includingany curepayment made inaccordancewithSection 11) and shallnot bedeemed to exist tothe extent the Note A-B Holder is exercising its cure rightsunder Section 11.
“Servicer”shall mean the Master Servicer or the SpecialServicer,as thecontext mayrequire.
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“ServicingAgreement” shallmean (i) prior to theSecuritization Date, the InterimServicing Agreement, and (ii)from and after the SecuritizationDate,theSecuritization ServicingAgreement.
“Servicing Fee Rate” shall have themeaning assigned to suchtermin the ServicingAgreement.
“ServicingStandard”shall mean (I) prior to theSecuritization Date, the proceduresthat the Master Servicer, as anindependent contractor, follows in order to service and administer the Mortgage Loan andadminister REO Propertysolely onbehalf ofthe Noteholders (as acollective wholeas if suchNoteholders constituted one lender, it being understood that NoteA-B is subordinate to theSenior Notes, subject to theterms and conditions of thisAgreement)(asdetermined bythe MasterServicer inthe exercise of its goodfaith andreasonable judgment), in accordance with applicable law, theterms of thisAgreementand the MortgageLoan Documents and, to the extent consistentwiththeforegoing, the following standards: (i) the higher of (a) thesame manner inwhich andwith thesame care, skill,prudence anddiligencewithwhich theMaster Servicer services andadministers similar loans andadministersforeclosedproperties for other third-party portfolios, giving dueconsideration to customary and usual standards ofpractice of prudent institutional commercialmortgage lenders in servicing their ownloansandadministering their ownforeclosed properties, or (b) withthe care,skill,prudenceand diligence theMaster Servicer uses for loans which itowns or for foreclosedpropertiesit owns and administers;(ii) with a view to thetimelycollection of (a) all scheduledpayments of principaland interest under the Mortgage Loan or, if the Mortgage Loan comes into and continues in default and if no satisfactoryarrangementscanbe madefor the collection of the delinquent payments, themaximization of therecovery on the Mortgage Loan to theNoteholders (as acollective whole as ifsuch Noteholders constitute asingle lender, it being understood thatNote A-B is subordinatetothe SeniorNotes, subject to thetermsof thisAgreement) on a net presentvaluebasis and (b) anyreimbursable expenses and otheramountsdue under the Mortgage Loan and(iii) without regard to:
(A) | anyrelationshipthat the MasterServicer or its Affiliatesmay have with theMortgage Loan Borrower or any of itsAffiliates; |
(B) | theownershipof anyother mezzanine loan bytheMasterServicer or its Affiliates; |
(C) | its obligation tomakeAdvances; |
(D) | therightof theMaster Servicer orits Affiliates toreceive reimbursement of costs,compensation orother fees (other thanAdvances),orthesufficiency of any compensation payable to it under thisAgreementor with respect to anyparticular transaction; or |
(E) | the ownership, servicing ormanagement for others of any other loans or property by the MasterServicer; and |
(II) from andafter theSecuritizationDate, the meaningassigned tosuch term in the Securitization ServicingAgreement.
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“Servicing TransferEvent” shall have themeaning(i) prior to theSecuritizationDate, assigned to suchtermor an analogoustermin the ModelServicing Agreement and (ii) from and aftertheSecuritization Date,assignedto such termoran analogous term in theSecuritizationServicingAgreement,exceptthat, asprovided inSection11(a)(iii), aServicing TransferEventshall bedeemednot to haveoccurredfor solong as a Noteholder isexercisingitscure rights hereunder.
“SpecialServicer”shall have themeaning assigned to suchtermin theServicing Agreement.
“SpeciallyServiced Mortgage Loan” shallhavethemeaning assigned to such term or an analogous term in the ServicingAgreement.
“Taxes”shall mean any income or other taxes,levies, imposts, duties,fees, assessments or otherchargesofwhatever nature, now orhereafter imposed by any jurisdiction or by anydepartment, agency, state orother political subdivision thereof or therein.
“Threshold Event Collateral” shall have themeaning assigned to such term in Section 5(i).
“Threshold Event Cure” shall have themeaning assigned to such term in Section 5(i).
“Transfer” shallmean any sale,assignment, transfer, pledge,syndication,participation, hypothecation,contribution, encumbrance orother disposition(either (i)directly or
(ii) indirectly through entering into a derivatives contract or any othersimilar agreement,excluding a repo financing or aPledge inaccordancewithSection 19(g)).
“Trustee”shall mean, withrespect toany Securitization, the bank or trustcompany asmaybe selected by the applicabledepositor andapprovedby the Rating Agencies to act as trustee for suchSecuritization, and shall includeany fiscal agent and/orpaying agent appointed for such Securitization.
“Unliquidated Advances” shall have themeaning assigned to suchtermor an analogous term in the ServicingAgreement.
“U.S. Person” shallmean a citizen or residentofthe UnitedStates, a corporation orpartnership(exceptto theextent provided in applicableTreasury Regulations) created or organized in or under the lawsofthe UnitedStates, any State thereof orthe District ofColumbia, including any entity treated as acorporationorpartnership for federalincome tax purposes, or an estatewhose income is subject toUnitedStatesfederal income tax regardless of itssource, or a trust if acourt within theUnitedStates isable toexercise primary supervision over theadministration of such trust, and one ormore such U.S. Persons have theauthority tocontrol all substantial decisions ofsuch trust (or, to the extent provided in applicableTreasury Regulations, a trust in existence onAugust20, 1996 that is eligible toelect to be treated asaU.S. Person).
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“Workout”shallmean any writtenmodification,waiver,amendment or restructuring relating to aworkoutof the MortgageLoan or theNote in connection with a MortgageLoan default or a likely default.
Section 2.Servicing.
(a) EachNoteholder acknowledges and agrees that, subject in eachcaseto thisAgreement, theMortgage Loan shall beserviced prior tothe Securitization Date pursuant to theInterim Servicing Agreement andfromandafter theSecuritization Date (exceptasotherwise set forth inSection 2(e)), pursuant to theSecuritization Servicing Agreement and, in each case, inaccordancewith thisAgreement;providedthat theMaster Servicer shall not be obligated to advancemonthly payments ofprincipal orinterest inrespect of theNotes other than theNote(s) included inthe Lead Securitization(and eachNon-Lead Master Servicer shall not be required to advancemonthly payments of principal and interest in respect ofthe Notesotherthan theapplicable Non-Lead Senior Note) if suchprincipal or interest is not paid by the Mortgage Loan Borrowerbut shall beobligated to advance delinquent real estate taxes, insurance premiums and other expensesrelatedto themaintenance of the MortgagedProperty and maintenance and enforcement of thelien of the Mortgage thereon, subject to theterms of theServicing Agreement. Each Noteholder acknowledges that aSenior Noteholder or the NoteA-B Holder may elect, in its sole discretion, to include itsSenior NoteorNoteA-B in aSecuritization and agrees that it will reasonably cooperate with such SeniorNoteholder or Note A-B Holder, at such SeniorNoteholder’s orNote A-B Holder’s sole cost and expense, toeffect such Securitization. Subject to theterms and conditions of thisAgreement,eachNoteholder hereby irrevocably andunconditionally consents tothe appointment of the MasterServicer, the Special Servicer and the Trustee under theSecuritization ServicingAgreementand agrees toreasonably cooperate with andconsentwiththe Master Servicer and theSpecial Servicer with respect tothe servicing of the MortgageLoanin accordance withthe Securitization Servicing Agreement and thisAgreement.EachNoteholder hereby appoints the MasterServicer,theSpecial Servicer and theTrusteein the LeadSecuritization as suchNoteholder’s attorney-in-fact tosign any documents reasonably required with respect tothe administration and servicing of the MortgageLoanon its behalf under the SecuritizationServicing Agreement (subject at alltimes to the rights of such Noteholder set forth herein and inthe Servicing Agreement). In noevent shall theServicerbe required to enforce the rights of anyNoteholder orlimittheServicer in enforcing the rights of oneNoteholderagainst any otherNoteholder; however, this statement shallnotbe construed to otherwiselimit the rights of one Noteholder with respect toany other Noteholder.
(b) The Controlling Noteholder (or anyControlling Noteholder Representative appointed by itacting on its behalf) shall exercise the rights and powers granted to the “Controlling Holder”,“Directing Certificateholder” or“DirectingHolder”(or similar term) under the ServicingAgreementwith respect to theMortgage Loan.
(c) The Securitization ServicingAgreement shall contain theServicingStandard (which shall require,among otherthings,that eachServicer, in servicing the Mortgage Loan,musttake into account the interests of eachNoteholder, taking into account that NoteA-B is junior to the SeniorNotes). In no eventmay theSecuritization Servicing Agreement change theinterest orprincipal allocable to, or theamount of any paymentsdue to, any Noteholder or
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materially increase anyNoteholder’s obligations ormateriallydecrease any Noteholder’s rights,remedies or protections hereunder.
(d) The Securitization ServicingAgreementshall contain provisions totheeffect that:
(i) anypayments received on the MortgageLoanshall be paid by the Master Servicer to each of the Noteholders inaccordance withSections 3 and 4 hereof on theMaster Servicer Remittance Date;
(ii) each of the Noteholders shall beentitled to receive, and theMaster Servicer and the SpecialServicer shall provide, anyinformation relating to the MortgageLoan, the MortgageLoanBorrower or the Mortgaged Property as aNoteholder may reasonably request andwould becustomarily in the possession of, orcollected or known by, the MasterServicer or SpecialServicer of mortgage loanssimilarto the MortgageLoan and, in anyevent,allinformation that isrequired tobeprovided toholders ofthe securities issued bythe SecuritizationTrust that includes other Notes, including, but notlimited tostandard CREFC® reports, subject tolimitations oninformation thatmay be made available to aNoteholder that is a MortgageLoan Borrower or aMortgage Loan Borrower RelatedParty;
(iii) eachNoteholder is an intendedthirdparty beneficiary inrespect oftherights afforded it underthe Securitization ServicingAgreementandmay directly enforce suchrights;
(iv) theSecuritization Servicing Agreement may not beamended without the consent of theNote A-B Holder (not to be unreasonablywithheld)if suchamendment wouldmaterially and adversely affectthe Mortgage Loan or the NoteA-B Holder’s rights with respect thereto;
(v) provide that any inconsistency between the Servicing Agreement and thisAgreementshall begoverned by anddeterminedin accordancewith theterms of thisAgreement; and
(vi) recognize the respective rightsand obligations ofthe Noteholders hereunder,including with respect to themakingofpayment tothe Noteholders and therights of the Noteholders toapprove matters andmakedecisionshereunder.
(e) Any obligation of theServicer pursuant to thetermshereofshall be performed by theMaster Servicer or theSpecial Servicer, as applicable, as setforthin the ServicingAgreement.
(f) EachNoteholder agrees to pay itsPercentage Interest of (i)any servicing Advancesandany interest accrued and payable on suchAdvances at the Advance Rate and (ii) any trust fund expenses and any other fees, costs or expenses incurred in connection with the servicing andadministrationof the MortgageLoan (including,without limitation, any costs,fees and expenses relatedto obtaining any Rating Agency Confirmation and any claims, losses, penalties, fines,forfeitures,legal fees and related costs,judgments and any othercosts, liabilities,
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fees and expenses incurred in connection with the servicing and administration oftheMortgage Loan and the Mortgaged Property under the SecuritizationServicing Agreement)inaccordance withthe Securitization Servicing Agreement and thisAgreement to the extent that suchamountsremain unpaid orunreimbursed after funds received from the Mortgage LoanBorrower forpaymentof suchamounts and any principal and interestcollections allocable to Note A-B has been applied to pay suchamounts.
(g) At anytime after theSecuritizationDate that the LeadSenior Note is no longer subject to the provisions of theSecuritization Servicing Agreement, the LeadSeniorNoteholder shall cause the Mortgage Loan to be servicedpursuant to a servicingagreementmutuallyagreeable totheNon-LeadSenior Noteholdersand theNoteA-B Holder that containsservicing provisions which are the same as ormorefavorable tothe Note A-B Holder, in substance,tothose inthe Securitization Servicing Agreementandall references herein to the “Securitization ServicingAgreement” shallmean such subsequent servicingagreement;provided, however, that (1) if any Non-LeadSenior Note is in aSecuritization, then RatingAgencyConfirmation shall havebeenobtained from eachRating Agency with respect to such subsequent servicingagreement and (2) until areplacement servicing agreement has beenentered into, (x) the LeadSenior Noteholder shall cause the Mortgage Loan to be serviced inaccordance with the servicingprovisions set forth in theSecuritization Servicing Agreement as if suchagreement was still infullforce and effectwith respect to theMortgageLoan and (y) theactual servicing of the Mortgage Loan may beperformed by any nationally recognized commercial mortgage loan servicerappointed by the LeadSenior Noteholder with the consent of the NoteA-B Holder and does nothave to beperformedby theservice providers setforth under the Securitization ServicingAgreement.
(h) Upon the occurrence of theLead Securitization, the LeadSenior Noteholder shall give each other Noteholders (and the applicable servicer andtrustee,if any other Note is in aSecuritization) notice of the LeadSecuritizationin writing (whichmay be by e-mail) prior to orpromptly following therelated Securitization Date. Such noticeshall contain contactinformationfor each of theparties to the relatedSecuritizationServicingAgreement and theidentityof thecontrolling class representative under suchSecuritization Servicing Agreement. In addition, after the closing of theLead Securitization, the Lead Senior Noteholder shall send a copy of theSecuritization ServicingAgreementtoeach of the other holders.
(i) EachNon-Lead Securitization Agreement shall containthe provisions set forth in Schedule I.
Section 3.Payments Prior to a Sequential Pay Event.NoteA-B and theright of theNote A-B Holder to receivepayments of interest,principaland otheramounts with respect toNoteA-B shall at alltimes be junior, subject andsubordinatetothe Senior Notes and the right of theSeniorNoteholders to receivepayments of interest,principal and other amounts with respect tothe Senior Notes as setforthherein. If noSequential Pay Event, asdeterminedby the applicableServicer, shall have occurred and be continuing, allamountstendered by the MortgageLoan Borrower or otherwise available forpaymenton orwith respect toor inconnection with the Mortgage Loan or the Mortgaged Property oramounts realized as proceeds thereof,whether received in theform of MonthlyPayments, the BalloonPayment, Liquidation Proceeds, proceeds under anyguaranty, letter of credit orothercollateral orinstrument securing
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theMortgage Loan or Insurance Proceedsor Condemnation Proceeds (other than proceeds, awards orsettlements to beappliedto therestoration orrepair of the Mortgaged Property or released to the MortgageLoan Borrower in accordance with theterms of the MortgageLoan Documents,to theextent permitted by theREMIC Provisions),but excluding (x) allamounts for required reservesorescrows required by the MortgageLoan Documents (to the extent, inaccordancewith theterms of the MortgageLoan Documents) to beheld as reserves or escrows or received asreimbursements on account ofrecoveries inrespectofAdvances then due and payable or reimbursable to the Servicerunder the Servicing Agreement and (y) all amounts that are thendue, payable orreimbursable toany Servicer,OperatingAdvisor,Certificate Administrator orTrusteewithrespect to the MortgageLoan pursuantto the ServicingAgreement, shall be applied by the LeadSeniorNoteholder (orits designee) and distributed by the LeadSenior Noteholder (or theServicer on its behalf)for payment in thefollowing order of prioritywithoutduplication (andpayments shall bemadeatsuch times as areset forth inthe ServicingAgreement):
(a) first, to the Senior Noteholders in anamountequal to the accruedand unpaid interest on the Senior Note Principal Balance at the NetSenior Note Rate;
(b) second, tothe Senior Noteholdersinanamount equal to theSenior Note PercentageInterest of principalpayments (includingallprepayment proceedsrelating tocasualty orcondemnation) received, if any, with respect to such MonthlyPayment Date with respect to the Mortgage Loan (including anyMonthly Debt ServicePaymentAmount);
(c) third, to each SeniorNoteholderup to theamount of anyunreimbursedcosts and expenses paid by such Senior Noteholder withrespect totheMortgageLoan pursuant tothis Agreementorthe Servicing Agreement, including any Recovered Costs, tobe allocatedpro rata based on the amounts due to eachSenior Noteholder pursuantto this clause;
(d) fourth, ifthe proceeds of any foreclosure sale or anyliquidation of a MortgageLoanor MortgagedProperty exceedthe amountsrequired to be applied in accordance with theforegoing clauses (a) to (c) and, as a result of aWorkout theSenior NotePrincipal Balance has been reduced, such excessamountshall bepaid tothe Senior Noteholdersin anamount up to the reduction, if any, of theSeniorNotePrincipal Balance as a result of suchWorkout, plus interest on such amount at the Net Senior NoteRate;
(e) fifth, to the extent the NoteA-B Holder hasmade anypayments or advances to cure defaults pursuant toSection 11 of thisAgreement,toreimburse theNote A-B Holder for all such curepayments;
(f) sixth, to theNote A-B Holder in anamount equal to the accrued and unpaid interest on the Note A-BPrincipal Balance at the Net Note A-B Rate;
(g) seventh, to the Note A-B Holder inan amount equal to the Note A-B PercentageInterest of principalpayments (including allprepayment proceedsrelatingtocasualty orcondemnation) received, if any, with respect to such MonthlyPayment Date with respect to the Mortgage Loan (including anyMonthly Debt ServicePaymentAmount);
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(h) eighth, tothe Note A-B Holder up to the amount of anyunreimbursed costs andexpensespaid by the NoteA-B Holder withrespecttothe Mortgage Loan pursuant to thisAgreementor the ServicingAgreement, including anyRecovered Costs;
(i) ninth, if the proceeds of any foreclosure sale orany liquidation of a MortgageLoan or MortgagedPropertyexceedthe amounts required to be applied in accordance with theforegoingclauses (a) to(h) and, as a result of aWorkouttheNote A-B Principal Balance has been reduced, such excessamountshall be paid tothe Note A-B Holder in anamount up to the reduction, ifany, of the Note A-B Principal Balance as aresultofsuch Workout, plus interest on such amount at the Net Note A-B Rate;
(j) tenth, anyPrepayment Premium,to theextent paid by the MortgageLoanBorrower, shall be paid to theSenior Noteholders in an amount up toitspro ratainterest therein, based on the product of theSenior NotePercentageInterestmultiplied by theSenior Note Relative Spread;
(k) eleventh, anyPrepayment Premium,to the extent paid by the MortgageLoan Borrower, shallbepaid tothe Note A-B Holder in anamountup to itspro ratainterest therein, based on the product ofthe Note A-B PercentageInterest multiplied bytheNoteA-B Relative Spread;
(l) twelfth, tothe extentdefault interest, latefees, assumption ortransfer fees actually paid by the MortgageLoanBorrower are not required to be otherwise applied under the ServicingAgreement,including,without limitation, tocompensateaServicer under the ServicingAgreement, any suchdefault interest, late fees,assumptionortransfer fees, to the extent actually paid by the MortgageLoanBorrower, shall bepaid to eachNoteholder,prorata, based on their respective Percentage Interests; and
(m) thirteenth, if any excessamountis available tobe distributed inrespect of theMortgage Loan, and nototherwiseapplied inaccordance with theforegoingclauses (a) to(l), anyremaining amountshall be paid to eachNoteholder,prorata,in accordancewith their respectiveinitialPercentageInterests.
Asusedin clauses (a)through (m) above,paymentsto the Senior Noteholders shall bemade to each of the SeniorNoteholders,pro rata andpari passu, based on their respective Principal Balance.
Section 4.Payments Following a Sequential Pay Event.Paymentsofinterest and principal shall bemadeto theNoteholders in accordance with Section 3 of thisAgreement;except, if aSequential Pay Event, asdeterminedby theapplicable Servicer in accordance with this Agreement and theServicing Agreement, shall have occurred and be continuing, allamounts tendered by the MortgageLoan Borrower or otherwise availableforpayment on orwith respect to or in connection with the Mortgage Loan or the MortgagedProperty oramountsrealizedas proceeds thereof,whether received in theform of MonthlyPayments,any proceedsfrom the saleor distribution of any REO Property, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral orinstrument securing theMortgageLoan or Insurance Proceeds orCondemnation Proceeds (otherthan proceeds, awards orsettlements to be
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applied tothe restoration or repairof the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with thetermsof the Mortgage LoanDocuments, to theextent permitted by the REMIC Provisions), butexcluding (x) allamounts for required reserves or escrows required by the Mortgage LoanDocuments to continue to be heldas reserves orescrows or receivedas reimbursements on account of recoveries in respect ofAdvancesthen due andpayable or reimbursable to the Servicerunder the Servicing Agreement and (y) all amounts that are thendue, payable orreimbursable toany Servicer,OperatingAdvisor,Certificate Administrator or Trustee withrespectto theMortgage Loan pursuant to the ServicingAgreement with respect tothe Mortgage Loan, shall be distributed by the Servicer in the following order of prioritywithout duplication (andpaymentsshall bemade atsuch times as areset forth inthe ServicingAgreement):
(a) first, to the Senior Noteholders in anamountequal to the accruedand unpaid interest on the Senior Note Principal Balance at the NetSenior Note Rate;
(b) second, tothe Senior Noteholders in anamountequal to all principalpayments (or otheramountsallocated toprincipal) received, if any,withrespectto the related MonthlyPaymentDate until theSenior NotePrincipal Balance has been reduced to zero;
(c) third, to each SeniorNoteholderup to theamount of anyunreimbursedcosts and expenses paid by such Senior Noteholder withrespect totheMortgageLoan pursuant tothis Agreementorthe Servicing Agreement, including any Recovered Costs, tobe allocatedpro rata based on the amounts due to eachSenior Noteholder pursuantto this clause;
(d) fourth, ifthe proceeds of any foreclosure sale or anyliquidation of a MortgageLoanor MortgagedProperty exceedthe amountsrequired to be applied in accordance with theforegoing clauses (a) to (c) and, as a result of aWorkout theSenior NotePrincipal Balance has been reduced, such excessamountshall bepaid tothe Senior Noteholdersin anamount up to the reduction, if any, of theSeniorNotePrincipal Balance as a result of suchWorkout, plus interest on such amount at the Net Senior NoteRate;
(e) fifth, to the Note A-B Holder in an amount equal to the accrued andunpaid interest on the Note A-BPrincipal Balanceat the Net Note A-BRate;
(f) sixth, to the Senior Noteholders in an amount equal to all remaining amountsreceived with respect to the related MonthlyPayment Date, until the SeniorNotes Principal Balance has been reduced to zero;
(g) seventh, to the extent the NoteA-B Holder hasmade anypayments or advances to cure defaults pursuant toSection 11 of thisAgreement,toreimburse theNote A-B Holder for all such curepayments;
(h) eighth, tothe Note A-B Holder in anamount equal to allremaining amounts received with respect to the related MonthlyPayment Date, until the NoteA-B Principal Balance has been reduced to zero;
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(i) ninth, to theNote A-B Holder up to theamount of any unreimbursedcostsand expenses paid by theNote A-B Holderwithrespect to theMortgage Loan pursuant to this Agreement or the ServicingAgreement,including any RecoveredCosts;
(j) tenth, if the proceeds of any foreclosure sale or anyliquidationof a MortgageLoan or MortgagedPropertyexceedthe amounts required to be applied in accordance with theforegoingclauses (a) to(i) and, as a result of aWorkout the Note A-B Principal Balance has been reduced, suchexcess amount shall bepaid to theNote A-B Holder in anamount up to the reduction, if any, of the Note A-B Principal Balance as aresultof suchWorkout, plus interest on suchamountat the Net Note A-B Rate;
(k) eleventh, anyPrepayment Premium,to the extent paid by the Mortgage LoanBorrower, shall be paid to theSeniorNoteholders in anamount up to itspro ratainteresttherein, based on the product of theSenior NotePercentage Interest multiplied by the Senior NoteRelative Spread;
(l) twelfth, anyPrepayment Premium,to the extent paid by the MortgageLoan Borrower, shallbepaid tothe Note A-B Holder in anamountup to itspro ratainterest therein, based on the product ofthe Note A-B PercentageInterest multiplied bytheNoteA-B Relative Spread;
(m) thirteenth, to the extent default interest, latefees, assumption ortransfer fees actually paid by the MortgageLoanBorrower are notrequired to be otherwise applied under the ServicingAgreement, including, withoutlimitation, tocompensateaServicer under the ServicingAgreement, any suchdefault interest, late fees,assumptionortransfer fees, to the extent actually paid by the MortgageLoanBorrower, shall bepaid to eachNoteholder,prorata, based on their respective Percentage Interests; and
(n) fourteenth, if any excessamountis available tobe distributed inrespectof theMortgage Loan, and nototherwiseapplied inaccordance with theforegoingclauses (a) to(m), anyremaining amount shall be paid to each Noteholder,prorata, in accordance with their respectiveinitial PercentageInterests.
As used in clauses (a)through (n) above,paymentsto the SeniorNoteholders shall bemadeto each of the SeniorNoteholders,pro rata andpari passu, based on their respective Principal Balance.
Section 5.Administrationof the Mortgage Loan.
(a) Subject to thisAgreement (including, withoutlimitation, Section 5(f) below) and the ServicingAgreement, theLead Senior Noteholder(or theServicer acting onbehalf ofthe Lead Senior Noteholder) shall have the sole and exclusive authority with respect to theadministration of, and exerciseof rights andremedies with respectto, the MortgageLoan, including, withoutlimitation, the sole authority tomodifyorwaive any of the terms ofthe MortgageLoan Documents or consent to any action orfailureto act by the MortgageLoan Borrower or any other party to the Mortgage LoanDocuments, call orwaive anyEventof Default, accelerate the MortgageLoan or institute anyforeclosureaction or otherremedy and theother Noteholders shall not have any voting, consent or other rights whatsoever with respect to
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the LeadSenior Noteholder’sadministrationof, or exercise of its rights andremedies with respect to, the MortgageLoan. Subject to thisAgreement andthe Servicing Agreement (including, withoutlimitation, Section 5(f)below),each of the Non-Lead Senior Noteholders and the NoteA-B Holder agree that it shall have no right to, andhereby presently and irrevocably assigns and conveys to the LeadSenior Noteholder (or theServicer acting on behalf ofthe Lead Senior Noteholder) the rights,if any, that the other Noteholders have to, (i) call or cause the Lead SeniorNoteholderto call anEvent of Default under theMortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loanor the MortgageLoan Borrower, including, without limitation, filing or causing the LeadSenior Noteholder tofile any bankruptcypetition against theMortgage Loan Borrower.The Lead Senior Noteholder (or theServiceractingon behalf ofthe Lead Senior Noteholder) shall not have any fiduciary duty toany other Noteholder in connection with theadministration of the Mortgage Loan (but the foregoing shall not relievethe LeadSenior Noteholder from the obligation tomake anydisbursement offunds asset forth herein).
(b) Theadministration of the Mortgage Loan shall be governed bythisAgreement and the ServicingAgreement. Each Noteholder agrees to be bound by theterms of the ServicingAgreementand thisAgreement. Servicing of theMortgageLoan shall be carried out by the MasterServicer and, if the Mortgage Loan is aSpecially Serviced Mortgage Loan by the Special Servicer, in eachcasepursuant to theServicing Agreement andthis Agreement. Notwithstanding anything to thecontrary containedherein,inaccordance withthe Servicing Agreement,theLead Senior Noteholder shallcausethe MasterServicer and the SpecialServicertoservice andadminister the Mortgage Loanin accordance with theServicingStandard, taking intoaccount the interests of each of the Noteholders (itbeing understood that the interests of the NoteA-B Holder is a juniorNote interest, subject tothe terms and conditions of this Agreement), and so long as eachNoteholder is not theMortgage Loan Borrower or a MortgageLoan Borrower Related Party, it shall bedeemed athird party beneficiary of suchprovisions of the ServicingAgreement. The foregoing provisions of thisSection 5(b) shall notlimitormodify the rights of theControllingNoteholder and/or theControlling Noteholder Representative to exercise their respective rightsspecifically set forth underthisAgreement.
(c) Notwithstanding anything to the contrary contained herein, but subject to thetermsandconditions of theServicing Agreementand thisAgreement (including, withoutlimitation, Section 5(f)below), if the LeadSeniorNoteholder in connection with aWorkout of the MortgageLoan modifies theterms thereof such that (i) the unpaid principal balance of the MortgageLoan is decreased, (ii)the Interest Rate orscheduled amortization payments on the MortgageLoanarereduced, (iii)payments ofinterest orprincipal on the MortgageLoan are waived, reduced or deferred or(iv)any otheradjustment (other than an increase in the Interest Rate or increase in scheduled amortizationpayments) ismadeto any of theterms of the MortgageLoan(otherthan an extension of the Mortgage Loanmaturitydate),all payments to the SeniorNoteholderspursuant toSection 3 and Section 4, as applicable, shall bemadeas though suchWorkout did not occur,withthepayment terms ofthe SeniorNotes remaining thesame as they are on the datehereof, Note A-B shallbear thefull economic effect of all waivers, reductions or deferrals ofamountsdue on the Mortgage Loan attributable to such Workout (up to theamount otherwise due on NoteA-B). Subject to theServicing Agreement and thisAgreement (including withoutlimitationSection 5(f) below), in the case of anymodification oramendment described above, theLead Senior Noteholder will have thesole authority and ability
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to revise thepayment provisions set forth in Section3and Section 4 above in amanner that reflects the subordination ofNoteA-B to theSenior Notes with respect to the loss that is the result of suchamendment ormodification, including: (i) the ability toincrease the SeniorNotePercentageInterest and to reduce the NoteA-B Percentage Interest in amanner that reflects a loss in principal as a result of suchamendment ormodification and (ii) the ability tochange the SeniorNoteRate and the NoteA-B Rate, as applicable, in order toreflectareduction inthe Interest Rate of theMortgage Loan butshall not bepermitted to change the order ofthe clauses set forth in Sections 3and 4hereof. Notwithstanding the foregoing, if anyWorkout, modification oramendmentof the Mortgage Loan extends theoriginal maturity date oftheMortgageLoan, for purposes ofthis paragraph, the Balloon Payment will bedeemed not tobedue on theoriginal maturity date oftheMortgage Loan butwill bedeemed due on the extendedmaturity date of the Mortgage Loan.
(d) All rights and obligations ofthe Lead Senior Noteholder described hereundermay be exercised by the Servicer on behalf of theLead SeniorNoteholder inaccordance with the ServicingAgreementand thisAgreement.
(e) For so long as any SeniorNote orNoteA-B is included as anasset of a REMIC, any provision of thisAgreementto the contrarynotwithstanding: (i) the Mortgage Loan shall beadministeredsuchthat theSenior Notes or NoteA-B, as applicable, shall eachqualifyatall times as(or asinterestsin) a“qualified mortgage” withinthe meaning ofSection 860G(a)(3) of theCode,(ii) anyreal property (and related personal property) acquired by or on behalf ofthe LeadSenior Noteholder pursuant to aforeclosure, exercise of apower ofsale or delivery of a deed in lieu offoreclosureof the Mortgage orlien on such property following a default on the MortgageLoan shall beadministered so that the interests of theNoteholders therein shall atall times qualify as “foreclosure property”within the meaning of Section 860G(a)(8) of theCode and (iii) no Servicermay modify, waiveor amend any provision of the MortgageLoan,consent to or withhold consent from any actionof the Mortgage Loan Borrower, or exercise or refrainfrom exercising any powers or rights which theNoteholders may have under the MortgageLoan Documents, if any such action wouldconstitutea“significant modification” of the MortgageLoan,within themeaning ofSection 1.860G 2(b) of the regulations of the United StatesDepartment of theTreasury, more than threemonths after theearliest startup day of any REMIC which includes aSenior Note (or any portion thereof).The Noteholders agree thatthe provisions ofthis Section 5(e) shall be effected bycomplianceby the LeadSeniorNoteholder or itsassignees with this Agreement or the ServicingAgreement or any otheragreementwhich governs theadministration of theMortgage Loan or the LeadSenior Noteholder interests therein.Allcosts and expenses ofcompliance with this Section 5(e), to the extent that such costs and expensesrelate toadministrationof aREMIC or to anydetermination respecting theamount, payment or avoidance of any tax under theREMIC Provisions orthe actualpayment of anyREMIC tax or expense, shall be borne bythe applicable Senior Noteholder or Note A-B Holderwithout reimbursement underSections3or4hereof.
(f) If any consent,modification, amendment orwaiverunder orother action in respect of the MortgageLoanor the Mortgage LoanDocuments (whether or not aServicingTransferEvent hasoccurred and iscontinuing) thatwould constitute a MajorDecision has been requested or proposed, at least ten (10)BusinessDays priorto taking action with respect tosuchMajor Decision (ormaking adeterminationnot to take actionwith respect to suchMajor
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Decision), the LeadSenior Noteholder (or Servicer acting onitsbehalf) shall request thewritten consent ofthe Controlling Noteholder (or itsControlling Noteholder Representative) beforeimplementing a decision withrespect to such Major Decision.
If theControllingNoteholder(or its Controlling NoteholderRepresentative)fails to respond tothe Lead Senior Noteholder (or Servicer acting onitsbehalf) with respecttoany such proposed action within ten (10)Business Days after receipt of such notice, theControlling Noteholder (or its Controlling Noteholder Representative), asapplicable, shall have no further consent rights withrespect to such action.
The Controlling Noteholder (orits Controlling NoteholderRepresentative) acknowledges that, if the “retaining sponsor”in the Lead Securitization has sold an“eligible horizontal interest” to a“third party purchaser” in accordance withSection 244.7 of the Credit Risk RetentionRule, thenfollowing the occurrence of an “Operating Advisor ConsultationEvent” (orsimilarterm) under the ServicingAgreement the OperatingAdvisor may have the rightto consult with the SpecialServicerwith respect to MajorDecisions.
Notwithstanding the foregoing, following the occurrence of anextraordinary event withrespecttoany Mortgaged Property, orif afailure to take any such action at such time would be inconsistentwiththeServicingStandard, theLead SeniorNoteholder (orServicer acting on its behalf) may take actions with respect to suchMortgaged Property before obtaining theconsentof theControlling Noteholder (or itsControlling Noteholder Representative) ifthe Lead Senior Noteholder (or Servicer acting on its behalf) reasonably determines in accordance with theServicingStandard that failure to take such actionsprior to such consentwould materially and adversely affect the interest ofthe Noteholders as a whole, and the LeadSenior Noteholder (or Servicer acting on itsbehalf)hasmade areasonable effort tocontact the Controlling Noteholder (or its Controlling NoteholderRepresentative). The foregoing shall not relieve theLead Senior Noteholder (or Servicer acting on itsbehalf) of its duties tocomply with theServicing Standard.
Notwithstanding the foregoing, the LeadSenior Noteholder (orServiceractingon its behalf)shall notfollow any advice, direction, objection or consultation provided by the Controlling Noteholder (or itsControlling NoteholderRepresentative) that would require or cause theLead SeniorNoteholder(or Servicer acting on itsbehalf) toviolateanyapplicable law, including the REMIC Provisions,be inconsistent with theServicing Standard, require orcausethe LeadSenior Noteholder (or Servicer acting on itsbehalf) to violate provisions of thisAgreement or the ServicingAgreement,require or cause the Lead Senior Noteholder (orServicer acting on itsbehalf)toviolate the terms of theMortgage Loan, ormaterially expand the scope of the LeadSeniorNoteholder (orServicer acting on its behalf)responsibilitiesunder thisAgreement.
(g) The Controlling Noteholdershall be entitled to approve theAsset Status Report in accordance with thetime frame provided in theServicing Agreement.
(h) (i)The Note A-B Holder, ifit isdetermined atany time ofdeterminationto no longer be theControlling Noteholder (the “Appraised-OutHolder”)as aresult ofthe application of an Appraisal ReductionAmount, shall havethe right, at its soleexpense, within
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fifteen (15) days of receipt of notice of theControl AppraisalPeriod, to require the Special Servicer to order a secondAppraisal withrespectto theMortgage Loan. The SpecialServicershalluse itsreasonable efforts consistentwith theServicing Standard to ensure that such second Appraisal is deliveredwithin thirty (30) daysfromreceipt of theAppraised-Out Holder’s written request and shall ensure that suchAppraisal isprepared on an“as-is” basis by anMAI appraiser(provided that such MAI appraisermay not be thesameMAIappraiser that provided theAppraisal in respect ofwhich the Appraised-Out Holder isrequestingtheSpecial Servicer to obtain anadditional Appraisal).
(ii)Upon receipt ofany supplemental Appraisalpursuanttoclause (i) above, the SpecialServicershalldetermine, inaccordance with the Servicing Standard, whether, based on itsassessment of suchsupplementalAppraisal, anyrecalculation of the Appraisal ReductionAmountis warranted, and if so warranted, the SpecialServicer shallrecalculate the Appraisal ReductionAmount based on suchsupplementalAppraisaland any information receivedfromthe MasterServicer. If requiredbysuchrecalculation, the Appraised-Out Holder shall be reinstated asthe Controlling Noteholder and, ifapplicable, shall haveitsrespective PrincipalBalance notionally restored to the extent required bysuch recalculation of the Appraisal ReductionAmount. The Appraised-Out Holderrequesting anysupplementalAppraisal pursuant to clause (i)above shall refrain fromexercisingany direction, control, consent and/orsimilar rights of theControllingNoteholderuntil such time, ifany, as the Appraised-Out Holder isreinstated asthe Controlling Noteholder (such period beginning upon receipt by the SpecialServicerof any request to obtain asupplemental Appraisal pursuant to clause(i)above to butexcluding the date on which either (A) the Special Servicerdeterminesthat no recalculation ofthe Appraisal ReductionAmountiswarranted or (B) the Special Servicer recalculates theAppraisal Reduction Amount based on the supplemental Appraisal, the“Appraisal ReviewPeriod”). The rights of theControlling Noteholder during eachAppraisal Review Period shall beexercised by the Note A-1 Holder.
(i) The Note A-B Holder (if Note A-B is nolongeranasset of theLead Securitization)shall beentitled toavoid aControl Appraisal Period caused by application of an AppraisalReduction Amount upon satisfaction of thefollowing (whichmustbecompleted within thirty (30) days of the receipt of a third partyAppraisalthat indicates suchControl AppraisalPeriodhas occurred):(i) theNote A-B Holdershall havedelivered as asupplementtothe appraised value of the Mortgaged Property, in theamount specified in clause (ii) below, to the Servicer, together with documentation acceptable tothe Servicer inaccordance with the Servicing Standard to createandperfect afirst priority securityinterestinfavor of the Lead SeniorNoteholderin suchcollateral (a)cash collateralforthe benefit of the Senior Notes, and acceptable to, the Servicer or (b) anunconditional andirrevocable standby letterof creditfor the benefit ofthe SeniorNotes, issued by a bank or otherfinancial institutions the long termunsecured debt obligations ofwhich are atall times rated atleast “AA” by S&P, “A” by Fitch and “Aa2” by Moody’s or the short term obligations of which are ratedat least “A-1+” by S&P, “F-1” by Fitch and “P-1” by Moody’s (either (a) or (b), the“Threshold Event Collateral”), and (ii) the Threshold Event Collateral shall be inan amount which, when added to the appraised value of the Mortgaged Property as determined pursuant to the Servicing Agreement, would cause the applicableControl Appraisal Period not to occur. If therequirementsof this paragraph are satisfied by the NoteA-B Holder (a“ThresholdEventCure”), no Control Appraisal Period caused by application of an Appraisal ReductionAmount shall bedeemed to have occurred. If a
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letter ofcreditisfurnished asThresholdEventCollateral, the NoteA-B Holdershall be required torenew suchletterof creditnot later than thirty (30) days prior toexpiration thereof orto replace suchletter of credit with asubstitute letter ofcreditor otherThreshold EventCollateralwith an expiration date that is greater than forty-five (45)days from the date ofsubstitution;provided,however, that, if a letter of credit is not renewedprior tothirty (30) days prior totheexpiration date of such letter ofcredit,theletter ofcredit shall provide that the Servicermay(and at the direction of theNote A-B Holder shall) draw upon such letter of credit and hold the proceedsthereofasThreshold Event Collateral. If a letter ofcredit is furnished asThresholdEventCollateral,theNote A-B Holdershall berequired toreplace such letter ofcreditwithother ThresholdEvent Collateralwithin thirty (30) days if the credit ratingsoftheissuingentityare downgraded below the required ratings;provided,however, that, ifsuch Threshold Event Collateral is not so replaced,the Servicer shall draw upon such letter ofcredit and hold the proceeds thereof asThreshold Event Collateral. TheThresholdEventCure shall continue until(i) the appraised value of the Mortgaged Property plus the value of theThresholdEvent Collateral would notbe sufficient to prevent aControl Appraisal Period from occurring; or (ii)final liquidation of the Mortgage Loan orREO Property. Ifthe appraised value of the Mortgaged Property, upon anyredeterminationthereof, issufficientto avoid the occurrence of a Control Appraisal Period withouttaking intoconsideration any, orsome portion of, Threshold Event Collateralpreviouslydelivered by suchNoteholder,anyor such portion of Threshold Event Collateral held by theServicer shall promptly bereturned to theNoteA-B Holder (atits sole expense).Uponfinal liquidation orrepayment of theMortgage Loan or REO Property with respect tothe Mortgage Loan, suchThreshold Event Collateralshall be available toreimburseeachNoteholder for any realizedlosspursuant to thepriorities provided inSection3 or 4, asapplicable, withrespectto theMortgage Loan after application of the netproceedsofliquidation, not inexcess of each PrincipalBalance of theNotes, as thecase may be, plus accrued and unpaidinterest thereon atthe applicable interest rate and allotherAdditionalServicing Expenses reimbursable under thisAgreementand under the ServicingAgreement and any Threshold Event Collateralremainingafter suchreimbursement andpayments shall be returned to theNote A-B Holder.Theentireamount ofThreshold EventCollateral, without ahaircut or other reduction, shallbe considered indeterminingthesufficiencyof suchThreshold Event Collateral toavoid a Control Appraisal Period.
(j) The Servicer or SpecialServicer shall obtainappraisals thatmeet therequirements of, and at thetimes required pursuant to, the terms of the ServicingAgreement.
(k) If the MortgagedProperty becomes anREOProperty, thesame shall be acquired, managed and operated inthe manner provided in theServicing Agreement.
(l) Prior to aControl Appraisal Period, theLead Senior Noteholder shall not bepermitted totransfer all or anyportion ofNote A-Bwithout the prior consent of the Note A-B Holder. If a ControlAppraisal Period hasoccurred and is continuing and the Mortgage Loan is a Defaulted MortgageLoan, the LeadSenior Noteholder (or theSpecial Servicer acting on its behalf) shall have the right to sell NoteA-B togetherwith theSeniorNotes,without theNote A- B Holder’s consent, subject to satisfaction of the followingconditions:
(A) the SpecialServicer has deliveredtothe NoteA-B Holder: (a)at least fifteen(15)Business Days’prior writtennotice ofany decision to
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attempttosell theMortgage Loan; (b)at least ten(10) days prior tothe proposed sale date, acopy ofeach bid package (together with anymaterial amendments to such bidpackages) received by the SpecialServicer in connection with any such proposed sale, (c) at least ten (10)days prior to the proposed sale date, a copy of themost recent Appraisal forthe MortgageLoan,and anydocuments in the servicing filereasonably requested by theNote A-B Holder that are material to thesale price of the MortgageLoan and (d) until the sale iscompletedand areasonable period oftime (but no lesstime than is affordedto other offerorsand the Controlling ClassRepresentative(as such term isdefined inthe Servicing Agreement)) prior to the proposed sale date, allinformation and other documentsbeing provided to other offerors and all leases orother documents that are approved by any Servicer in connection withthe proposed sale;
(B) all offers are to besubmitted to theTrusteein writing;
(C) whether any cash offer constitutes a fair pricefor the Notesshallbedetermined by the Trustee; provided, thatnooffer from anInterestedPerson (as defined in theServicing Agreement) shall constitute afair price unless(a)it is thehighest offerreceived and (b)at leasttwobona fide other offers arereceivedfrom independentthird parties;
(D) indetermining whether any offer received represents afair price for theNotes, theTrustee shallbesupplied with and shall rely on the most recent Appraisal orupdated Appraisal conducted inaccordance with the ServicingAgreementwithin thepreceding nine(9) monthperiod or, in the absence of any suchAppraisal, onanew Appraisal;
(E) the Trusteemay conclusivelyrelyon the opinion of anIndependent (as defined inthe Servicing Agreement) appraiseror otherIndependent (as defined inthe Servicing Agreement) expert in realestate matters retained by the Trustee at the expense of theNoteholders in connection withmaking such determination; and
(F) eachNote A-B Holder shall be permitted tosubmitan offer atany sale of the MortgageLoanunless suchPerson is theMortgage Loan Borrower or a MortgageLoan Borrower Related Party.
The Note A-B Holder hereby appoints the Lead Noteholder (or theServicer acting on its behalf) as its agent, and grants to the LeadNoteholder anirrevocablepower of attorneycoupled with aninterest, and its proxy, for the purpose of soliciting and accepting offersfor andconsummating the sale of NoteA-B pursuant to this Section5(l). The Note A-B Holder further agrees that, upon the request ofthe Lead Noteholder, itshall execute and deliver to orat the direction of the Lead Noteholder (or theServiceracting on itsbehalf) such powers of attorney or otherinstrumentsas theLead Noteholder may reasonably request tobetter assure and evidence the foregoingappointment and grant, in each casepromptly following request, and shall deliver
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originals ofNoteA-B,endorsed in blank, to or at thedirectionof theLead Noteholder (or the Servicer acting on its behalf)in connection with the consummation of any such sale.
In addition, if, upon the MortgageLoan becoming a DefaultedLoan,the Lead SeniorNoteholder (or theSpecial Servicer acting on itsbehalf) determines to sellthe Defaulted Loan orthe LeadSenior Note, itwill berequired tosell each Non-Lead Senior Note together with theLead SeniorNote. Any such sale of aNon-Lead Note shall require thewrittenconsent of eachNon-Controlling SeniorNoteholder (provided thatsuch consent is not required if such Non-Controlling SeniorNoteholder is the Mortgage LoanBorroweror a MortgageLoan Borrower RelatedParty)unless the SpecialServicer has delivered to eachNon-ControllingSeniorNoteholder: (a)at least fifteen (15)Business Days’prior writtennotice of any decision toattempt to sell theMortgage Loan; (b) atleast ten (10) dayspriorto the proposed sale date, a copy of each bid package (togetherwith anymaterial amendments to such bid packages) received by the SpecialServicer in connection with any suchproposed sale, (c) at least ten (10) days priortothe proposed sale date, a copy of themost recentAppraisalfor the MortgageLoan, and anydocumentsin the servicing file reasonably requested by eachNon-Controlling Senior Noteholder thatare material tothe sale priceof theMortgage Loan and (d) until the sale iscompleted and a reasonable period oftime(but no lesstime than is afforded to other offerors andthe Controlling Class Representative (as such term is defined inthe Servicing Agreement)) prior to theproposed sale date, all information and otherdocuments being provided to other offerors and all leases or otherdocuments that are approved by anyServicer in connection with the proposed sale. A Non-Controlling SeniorNoteholder may waiveany of the delivery ortiming requirements set forth in this paragraph as to itself.Subjectto the foregoing, each of the Non- Controlling SeniorNoteholders shall bepermitted tosubmit an offer atanysale of the Mortgage Loanunless suchPersonis theMortgage LoanBorrower or anagent orAffiliate ofthe Mortgage Loan Borrower.
(m) The ServicingAgreement shallprovidethatduring thecontinuation of a Control Appraisal Period, theLead Senior Noteholder (or theServiceracting on itsbehalf) shall be required: (i) toprovide copies of any notice, information and report that itis required to provide to the controlling class representative pursuant tothe Servicing Agreement with respect to any Major Decisions or theimplementation of anyrecommendedactionsoutlined in anAsset StatusReport relating to the Mortgage Loan, to eachNon-Controlling Senior Noteholder (or itscontrolling classrepresentative), within thesame time frame it is required to provide to thecontrollingclassrepresentative (for thispurpose,withoutregard towhether suchitems are actually required to be provided to the controlling classrepresentativein theLead Securitization under the ServicingAgreementdue to thetermination of a“Subordinate Control Period” ortermination of a “SubordinateConsultation Period” (as such terms are defined in the ServicingAgreement)); and (ii) to consult with eachNon-Controlling SeniorNoteholder(or its controlling classrepresentative) on astrictlynon-binding basis, to the extent having received such notices,information and reports, suchNon-Controlling SeniorNoteholder (or itscontrolling class representative) requestsconsultationwith respect to any such Major Decisionsor the implementation of anyrecommendedactionsoutlined in anAsset StatusReport relating to the MortgageLoan,and consideralternative actionsrecommendedby suchNon-Controlling Senior Noteholder (or its controlling class representative); provided that aftertheexpiration of a period of ten (10)BusinessDaysfrom the delivery to theNon-Controlling Senior Noteholder (or itscontrolling classrepresentative)by theLead Senior Noteholder ofwritten notice of aproposed
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action, togetherwith copies of the notice,informationandreport required to beprovided to the controlling class representative, the LeadSenior Noteholder(orthe Servicer acting on itsbehalf) shall no longer be obligated toconsult with the Non-Controlling Senior Noteholder (or its controlling classrepresentative), whether or not theNon-Controlling Senior Noteholder (or its controlling classrepresentative) have responded within suchten (10) Business Day period (unless, theLead Senior Noteholder (or theServiceractingon its behalf) proposes a new course of actionthatismaterially different from the actionpreviously proposed, in which case such ten
(10) Business Day period shall be deemed to beginanew from thedate of such proposal and delivery of allinformation relating thereto). Notwithstanding the consultation rights of the Non- Controlling Senior Noteholder (or its controlling classrepresentative) set forth inthe immediately preceding sentence, theLead Senior Noteholder (orServicer acting on itsbehalf) may make any Major Decision or take any action set forth in the Asset Status Report beforetheexpiration of the aforementionedten (10) Business Day period if theLead Senior Noteholder (or Servicer acting on itsbehalf) determines that immediate actionwith respect thereto is necessary to protecttheinterests of the Noteholders. In no event shall theLead SeniorNoteholder(or Servicer acting on its behalf) be obligated at anytime tofollow or take anyalternative actions recommended by aNon-ControllingSeniorNoteholder (or itscontrolling class representative). In addition to the consultationrights of the Non-ControllingSenior Noteholder (or its controlling class representatives), during the continuation of aControl Appraisal Period theNon-ControllingSeniorNoteholder shall have the right to attend annualmeetings (either telephonically or in person, in the discretion of theServicer) with theLead Senior Noteholder (or the Servicer acting on itsbehalf)at theoffices of theServicer, asapplicable, upon reasonable notice and attimes reasonably acceptable to theServicer, as applicable, inwhich servicing issues related tothe MortgageLoanare discussed.
(n) The LeadSenior Noteholder (or at any time when theLeadSeniorNote is included in aSecuritization,the MasterServicer) shall,within thirty (30) daysafter receipt, provide theNoteA-B Holderwith copies of each financialstatement and otherreport delivered tothe Lead Senior Noteholder orMaster Servicer pursuant tothe terms of the Mortgage LoanDocuments. Subject to thetermsof the applicable Mortgage LoanDocuments, the LeadSeniorNoteholder shall alsodeliver copies of any otherdocuments relating to the Mortgage Loan, including,without limitation, property inspection reports and standard CREFC® reports, in eachcase,tothe extent inthe possession of the Lead Senior Noteholder. In addition, the Note A-B Holder shall have theright from time totime to requestthat theLead Senior Noteholder request from the Mortgage LoanBorrower(and the LeadSenior Noteholdershallsorequest from the MortgageLoan Borrower) suchother documents, reports, estoppelsand/or certifications that the MortgageLoan Borrower isrequiredto deliver under theMortgage Loan Documents. At any time when theLead Senior Note is included in aSecuritization, theCertificate Administrator shall alsoprovide access to theCertificate Administrator’s website to theNote A-B Holder (orany prospective purchaser of Note A-B) toallow the Note A-B Holder (or any prospective purchaser of NoteA-B) toaccess any financialstatements andother documents and reportsrelating tothe Mortgage Loan on theCertificate Administrator’s website, subject to restrictions oninformation made available toBorrower Related Parties.Any delivery required under this Section5(n) may be provided by giving the NoteA-B Holder access to a website that contains such information.
Section 6.Appointmentof the ControllingNoteholder Representative.
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(a) The Controlling Noteholder shall have the right at anytime to appoint arepresentative (the “Controlling Noteholder Representative”) toexercise its rights hereunder. The Controlling Noteholder shall have the right in its sole discretion at anytimeand fromtime totime to remove andreplace theControlling Noteholder Representative. When exercising its various rights under Section 5 and elsewhere in thisAgreement,the ControllingNoteholder may, atitsoption, in each case,act through the ControllingNoteholder Representative. The Controlling Noteholder Representativemay be any Person (other than theMortgage Loan Borrower, itsprincipalor any Affiliate of the MortgageLoan Borrower), including, withoutlimitation,the Controlling Noteholder, any officer oremployee of the Controlling Noteholder, anyAffiliate of the Controlling Noteholder or anyother unrelated third party. No such Controlling Noteholder Representative shallowe any fiduciaryduty or other duty to any other Person (other than theControlling Noteholder). All actionsthat arepermittedto be taken by the Controlling Noteholder under thisAgreement may be taken by theControlling NoteholderRepresentative acting on behalf ofthe Controlling Noteholderand the Lead Senior Noteholder willaccept suchactionsof the Controlling NoteholderRepresentative asactionsof the Controlling Noteholder. The Lead Senior Noteholder (or anyServicer on its behalf) shall notbe required to recognize any Person as an Controlling NoteholderRepresentative until the Controlling Noteholder hasnotifiedthe LeadSenior Noteholder (and any Servicer) of suchappointmentand, if theControlling Noteholder Representative is notthe same Person as the Controlling Noteholder, theControlling Noteholder Representative provides the LeadSenior Noteholder (and any Servicer) withwritten confirmation of itsacceptance of such appointment, an address (includinge-mail) and telecopynumber for thedelivery of notices and other correspondence and a list of officers oremployeesof such person withwhom the parties tothis Agreement may deal (includingtheir names, titles,work addresses (includinge-mail) andtelecopy numbers). The Lead Senior Noteholder shall promptly deliver suchinformation toany Servicer.
(b) Neither the Controlling Noteholder Representative northe Controlling Noteholder willhave any liability to theother Noteholders or any other Person for any action taken, orfor refraining from the taking of any action pursuant to thisAgreement or theServicing Agreement, or errors injudgment, absent any loss, liabilityorexpense incurred by reason of itswillful misfeasance, bad faith or gross negligence. The Noteholders agree thatthe Controlling Noteholder Representative and any Controlling Noteholder(whether acting in place oftheControlling Noteholder Representativewhen no ControllingNoteholder Representative shall have beenappointed hereunder or otherwise exercising anyright, power orprivilege granted to suchControlling Noteholder hereunder)maytake or refrain fromtaking actions that favor the interests of oneNoteholderover the other Noteholders, andthat the ControllingNoteholderRepresentativemay have specialrelationships and intereststhat conflict with theinterestsof a Noteholder and,absent willful misfeasance, badfaith or gross negligence on the part of the Controlling Noteholder Representative or such ControllingNoteholder,as the casemay be, agree to take no action against theControlling Noteholder Representative, such Controlling Noteholderor any of their respective officers, directors, employees,principals or agentsasa result of such special relationships or interests, and that neither theControllingNoteholder Representative nor suchControlling Noteholder will be deemed to havebeen grosslynegligent or reckless, orto haveacted in badfaith or engaged inwillful misfeasance or tohave recklesslydisregarded anyexercise ofits rights by reason of its having acted orrefrained from actingsolely in theinterests of any Noteholder, as applicable.
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(c) If theLead Senior Noteholder isthe Controlling Noteholder, each of the otherNoteholders acknowledges and agrees all of theaforementioned rights and obligations of the Controlling Noteholder andthe Controlling NoteholderRepresentative set forth inSection 5(f) and thisSection6 shall beexercisable by the Lead Senior Noteholder (or the applicable Person specified in theServicing Agreement) to the extent set forth in the ServicingAgreement.
Section 7.SpecialServicer. Subject to theterms of the ServicingAgreement, the Controlling Noteholder (orits Controlling Noteholder Representative), atits expense (including, withoutlimitation, the reasonable costs andexpensesof counsel to any third parties and costsand expenses of theterminated Special Servicer), shall havethe right toterminatethe SpecialServicer and appoint areplacementSpecialServicer under the Servicing Agreement, with or without cause, upon atleast ten (10)Business Days’ priornotice to theSpecial Servicer (provided, however, that theControlling Noteholder (or itsControlling Noteholder Representative) shall not be liable for anytermination orsimilar fee inconnection with theremoval of theSpecial Servicer in accordance with this Section 7); any such termination not tobeeffective unless anduntil (A)(i)the SeniorNoteholders have consented to suchappointment or (ii) after a Securitization, eachRatingAgency delivers Rating AgencyConfirmation withrespecttothe identity of any suchreplacementSpecialServicer; (B) thesuccessorSpecial Servicer hasassumed inwriting(from and after the date suchsuccessor Special Servicerbecomesthe SpecialServicer) all of theresponsibilities, duties and liabilities of theSpecial Servicer under theServicing Agreement from and after the date itbecomes the SpecialServiceras they relate to such Mortgage Loan pursuant to anassumption agreement reasonablysatisfactory to theTrustee; and (C) the SeniorNoteholdershave or, after a Securitization, the Trustee has received an opinion ofcounsel reasonablysatisfactory tothe Trustee to theeffect that (x) suchreplacement will bebound by theterms of theServicing Agreement withrespect to such Mortgage Loan and (y) subject tocustomaryqualifications andexceptions, the applicableservicing agreement will be enforceableagainst suchreplacementin accordance with itsterms. The Controlling Noteholdershall promptly provide copies toany terminated Special Servicer of thedocuments referred to in thepreceding sentence. Notwithstanding the foregoing, while Natixis orone of itsaffiliates is theControlling Noteholder, it shall nothavethe right toremove and appoint areplacementSpecialServicer.
Notwithstanding the foregoing, after the SecuritizationDate, if the“retainingsponsor” in theLead Securitization has sold an “eligiblehorizontal interest” to a “thirdparty purchaser” inaccordance with Section 244.7 of theCredit Risk Retention Rule,each Noteholder agrees that the SpecialServicer may be replaced upon (a) therecommendationof theOperating Advisor appointed under theSecuritization Servicing Agreement if theOperating Advisordetermines,in its sole discretion exercised in good faith,that (1) theSpecial Servicer hasfailed tocomply with theServicing Standard and (2) areplacementof the SpecialServicer would be inthe best interest of the holders of thecertificates, and(b) the subsequent affirmative vote of “ABS interests” (as defined inSection244.2 of theCredit Risk Retention Rule). However, the Controlling Noteholder (or its controlling NoteholderRepresentative) shall retain itsrightto subsequentlyremove and replace the SpecialServicer,but theControlling Noteholder (or its Controlling Noteholder Representative) shall not restore aSpecial Servicer that has been replaced pursuant to theprecedingsentence.
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Section 8.PaymentProcedure.
(a) The LeadSenior Noteholder (or theServiceron its behalf), inaccordance with theprioritiessetforth inSection 3 or 4, as applicable,and subject to the terms oftheServicingAgreement, shalldeposit or cause to be deposited allpayments and collections on the MortgageLoanallocable to the Notes to theCollection Accountforthe Notesestablished pursuant to theServicing Agreement. The Lead SeniorNoteholder (ortheServiceron its behalf) shall establish a segregated sub-accountfor amounts due to theNoteholders. The Lead Senior Noteholder (orthe Servicer acting on its behalf) shall depositsuch amounts to the applicable accountwithin two (2) Business Days of receipt of properlyidentified payments andcollections by the LeadSeniorNoteholder (or the Servicer acting on itsbehalf) from or on behalf of the MortgageLoan Borrower.
(b) If the Lead Senior Noteholder(or the Serviceronits behalf)determines, or a court ofcompetent jurisdiction orders, at anytime thatany amount receivedor collected in respect of aNote must, pursuant to any insolvency, bankruptcy,fraudulent conveyance, preference orsimilar law,be returned to the MortgageLoan Borrower or paid to the related Noteholder or any Servicer or paid to any other Person, then,notwithstanding any other provision of thisAgreement,the LeadSenior Noteholder (or theServicer on its behalf) shall not be required to distribute any portion thereof to such Noteholder, and such Noteholder willpromptlyondemand by theLead Senior Noteholder (or theServicer on itsbehalf) repay tothe LeadSenior Noteholder (or the Servicer on its behalf) anyportion thereof that theLead Senior Noteholder (or theServicer on itsbehalf) shall havetheretofore distributed to suchNoteholdertogetherwith interest thereon at such rate, if any, as theLeadSeniorNoteholder shall havebeen required to pay to any MortgageLoan Borrower, theNon-Lead Senior Noteholders, Master Servicer, Special Servicer orsuch other Person with respect thereto.
(c) If, for any reason, the LeadSenior Noteholder (or the Serviceron its behalf) makes any payment to any Noteholder before the Lead Senior Noteholder (or the Servicer on its behalf) hasreceivedthe correspondingpayment(it being understood that the Lead SeniorNoteholder(or the Servicer on its behalf) is under noobligation to do so), and the Lead SeniorNoteholder (or the Servicer on its behalf) does notreceivethe correspondingpayment within three (3) Business Days of itspaymentto suchNoteholder, the receivingNoteholder shall, at theLead SeniorNoteholder’s(or the Servicer’s on itsbehalf) request, promptly return that payment to the Lead SeniorNoteholder (or the Servicer on itsbehalf).
(d) EachNoteholder agrees that if at anytimeit shall receivefrom any sourceswhatsoeveranypayment on account of the MortgageLoanin excess of itsdistributable sharethereof,it willpromptly remit such excess to theLead Senior Noteholder (or theServicer on its behalf) subjecttothisAgreement and the ServicingAgreement. The LeadSenior Noteholder (orthe Serviceron itsbehalf) shall have the right to offset anyamountsdue hereunder from a Noteholder withrespect to the MortgageLoan against any futurepayments due to such Noteholder under the MortgageLoan,provided, thateach Noteholder’s obligations under thisSection8 areseparate anddistinct obligationsfrom oneanother and in no event shall the LeadSenior Noteholder (or theServiceron itsbehalf) enforcethe obligationsofone Noteholder against another Noteholder.EachNoteholder’s obligationsunder this Section 8constituteabsolute, unconditionaland continuing obligations.
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Section 9.Limitation on Liability of the Noteholders.The Senior Noteholders (including any Servicer, except as otherwiseprovided inthe ServicingAgreement) shallhave no liability to the NoteA-B Holder withrespecttoNote A-B exceptwith respect to losses actually suffered due to the gross negligence,willful misconduct or breach of thisAgreement on the part of a Senior Noteholder. The Note A-BHoldershall have no liability to the SeniorNoteholders with respecttoany SeniorNote except with respect tolossesactually suffered by suchSenior Noteholder due to the gross negligence,willful misconduct or breach of thisAgreement on the partof the Note A-B Holder.
The NoteA-B Holder acknowledges that, subject to thetermsandconditions hereof and theobligationof the LeadSenior Noteholder(includinganyServicer) tocomply with,and except as otherwise required by, the Servicing Standard, the LeadSenior Noteholder (including any Servicer)may exercise, oromittoexercise, anyrights that theLead Senior Noteholdermay have under thisAgreement and the ServicingAgreementin amanner that may be adverse to the interests of the NoteA-B Holder and that theLead SeniorNoteholder(including any Servicer) shall haveno liabilitywhatsoeverto the NoteA-B Holder in connection with the Senior Noteholders’exerciseof rights or anyomissionby the Lead Senior Noteholder to exercise such rights other thanas described above;provided,however, that theServicer must act inaccordance with theServicing Standard, thisAgreementand theServicing Agreement and the Senior Noteholders shall not beprotected against anyliabilityto the Note A-B Holder that would otherwisebe imposed by reason of willfulmisfeasance, badfaith or negligence.
Eachofthe Senior Noteholders acknowledges that, subject to theterms and conditionshereof, theNote A-B Holdermay exercise, oromit toexercise, anyrights that the NoteA-BHoldermay have under thisAgreementand the ServicingAgreement in amannerthatmay be adverse to theinterestsof the SeniorNoteholders and that the Note A-B Holder shall have noliability whatsoever tothe Senior Noteholders inconnection with the Note A-B Holder’s exercise ofrights or any omission by the Note A-B Holder to exercise such rights;provided, however, that theNote A-B Holder shall not be protected againstany liabilitytotheSenior Noteholders that would otherwise beimposedby reason ofwillful misfeasance, badfaithornegligence.
Section 10.Bankruptcy.Subject to theprovisions of Section 5(f) hereof, each Non-LeadSenior Noteholder and the NoteA-B Holder herebycovenant and agree that only the LeadSeniorNoteholder (or the Servicer on itsbehalf) hastheright to institute, file,commence, acquiesce,petitionunder BankruptcyCode Section 303 orotherwise or join any Person in any such petition or otherwise invoke or cause any other Person to invoke an InsolvencyProceedingwith respect to or against the Mortgage LoanBorrower or seekto appoint areceiver, liquidator, assignee,trustee,custodian,sequestrator or other similar official withrespectto theMortgage LoanBorrower orall or any part of its property or assets ororderingthewinding-up or liquidation of the affairs of the MortgageLoanBorrower. Subject to the provisions ofSection 5(f) hereof, eachNon-Lead Senior Noteholder and the NoteA-B Holder further agree that only the LeadSenior Noteholder as a creditor, canmake anyelection, give any consent, commence any action orfileanymotion, claim, obligation, notice or applicationortake anyother action in any case by or against the MortgageLoanBorrower under theBankruptcy Code or in any other Insolvency Proceeding.Each Non-Lead Senior Noteholder and theNote A-B Holder appoint the LeadSenior Noteholder as their agent, and grants to the Lead Senior Noteholder an irrevocable
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power of attorney coupledwith an interest, and itsproxy,for the purpose of exercising any and all rights and taking any and all actions available to eachNon-Lead Senior Noteholder and the NoteA-B Holder in connectionwithany case by oragainst theMortgageLoanBorrower under theBankruptcy Code or in anyother Insolvency Proceeding, including, withoutlimitation,the right to file and/orprosecute anyclaim,vote to acceptor reject a plan, tomakeany electionunder Section 1111(b) ofthe Bankruptcy Code with respect tothe MortgageLoan,and tofile a motion tomodify, lift orterminate the automatic stay withrespectto the MortgageLoan. Each Non-LeadSeniorNoteholder and the NoteA-B Holder herebyagrees that, upon the request of the LeadSenior Noteholder, eachNon-Lead Senior Noteholder andthe Note A-B Holder shall execute, acknowledge and deliver to the LeadSenior Noteholder all and every suchfurtherdeeds, conveyances andinstruments as the LeadSenior Noteholder may reasonably requestfor the better assuring and evidencing of theforegoing appointment andgrant. All actionstaken by the Servicer in connection with any InsolvencyProceeding aresubjectto and must be inaccordance with the ServicingStandardandthis Agreement..
Section 11.Cure Rights of the Note A-B Holder.
ThisSection 11 shall not have any force ofeffect until thedate, if any, when Note A-B is no longer an asset of the Lead Securitization Trust.
(a) Subject to Section11(b) below,in the event thatthe MortgageLoan Borrower fails tomake anypayment of principal or interest on the MortgageLoan by the end of theapplicablegrace period for suchpayment permitted underthe applicable Mortgage LoanDocuments (a“Monetary Default”), the Lead Senior Noteholdershallpromptly provide notice to the NoteA-B Holder and the Controlling NoteholderRepresentativeof such default (the “MonetaryDefault Notice”).The Note A-B Holder shall have the right, but not the obligation, to curesuch MonetaryDefault within ten(10) Business Daysafter receivingthe MonetaryDefaultNotice(the “Cure Period”). At thetimeapayment ismade to cure aMonetary Default, the NoteA-B Holder shall pay orreimbursetheSenior Noteholders for allunreimbursedAdvances(whether or notrecoverable), Advance Interest Amounts, any unpaid fees toany Servicer and any Additional Servicing Expenses. The Note A-B Holder shall not be required, in order to effect a cure hereunder, topay any default interest orlate charges under the Mortgage LoanDocuments. So long as aMonetary Default existsforwhich a curepayment permitted hereunder ismadeorfor which theCure Period described above has not expired, such Monetary Default shall notbe treated as anEvent ofDefault by the LeadSenior Noteholder (including for purposes of (i) the definition of“Sequential Pay Event,” (ii) accelerating the MortgageLoan, modifying,amendingorwaiving any provisions ofthe Mortgage Loan Documents or commencingproceedings for foreclosure or the taking of titlebydeed-in-lieu offoreclosure or othersimilar legal proceedingswithrespect to the MortgagedProperty, or (iii) treating theMortgage Loan as aSpecially Serviced Mortgage Loan);provided that suchlimitationshallnot prevent the LeadSenior Noteholder from collectingdefault interest or late charges from the MortgageLoanBorrower.Any amounts advanced by a Noteholderonbehalf of the Mortgage LoanBorrower to effect any cureshallbereimbursable to such Noteholder underSection3 orSection 4, as applicable.
(b) Notwithstanding anything to thecontrary contained in Section11(a), the NoteA-B Holder shallbe limitedto six(6) cures ofMonetary Defaults in any 12month period,
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but in no eventmore than twelve (12) cures ofMonetary Defaults over the term of theMortgage Loan, and six (6) cures ofNon-Monetary Defaults over the termof the Mortgage Loan, it being understood that aNon-Monetary Default CurePeriod thatmay extendlonger than onemonth inaccordancewithSection 11(d) shall be considered to be asingle cure. Additional Cure Periods shallonly bepermittedwiththe reasonable consent of the Lead Senior Noteholder.
(c) No action taken by the Note A-BHolder in accordance with thisAgreementshallexcuse performance by the MortgageLoan Borrower of its obligations under the MortgageLoan Documents and the SeniorNoteholders’ rightsunder the Mortgage Loan Documents shall not bewaived orprejudicedby virtue ofthe Note A-B Holder’s actions under thisAgreement. Subject to theterms of thisAgreement,theNote A-B Holder shall be subrogated to theSeniorNoteholders’ rights to anypayment owing to theSeniorNoteholdersfor which the NoteA-B Holder makes a curepayment aspermitted underthis Section 11 but suchsubrogation rights may not beexercised against the Mortgage Loan Borrower until 91 daysafter the Senior Notes is paid in full.
(d) If an Event ofDefault (other than aMonetary Default) occurs and is continuing under the MortgageLoan Documents (a “Non-MonetaryDefault”), theLead Senior Noteholder (or theServicer onitsbehalf) shallpromptly provide notice to theNoteA-B Holder and the Controlling NoteholderRepresentative of suchfailure(the “Non-MonetaryDefault Notice”) and the NoteA-B Holder shall havethe right, but not the obligation, to cure suchNon-MonetaryDefault within ten(10) days from the later of(i)theexpiration of the cure period of the Mortgage Loan Borrower under the MortgageLoan Documents and (ii) receiptof the Non- MonetaryDefault Notice;provided, however, if such Non-MonetaryDefault issusceptibleof cure but cannot reasonably be cured withinsuch period and ifcurativeaction waspromptly commenced and isbeing diligently pursued by the NoteA-B Holder, theNoteA-B Holder shall be given an additionalperiod oftimeas isreasonably necessary to enable the NoteA-B Holder in the exercise of due diligence to cure suchNon-Monetary Default for so long as (i) theNote A- B Holder diligently and expeditiously proceeds to cure suchNon-Monetary Default, (ii)theNoteA-B Holdermakes allcure payments thatit ispermitted tomake inaccordance with the terms andprovisions ofSection11(a)hereof, (iii) suchadditional period oftime does notexceed sixty(60) days,(iv)suchNon-Monetary Defaultisnotcaused by anInsolvency Proceeding or during such period oftimethat theNoteA-B Holder has to cure aNon-Monetary Default in accordance with this Section 11(d) (the“Non-Monetary Default CurePeriod”),an InsolvencyProceedingdoes not occur and (v) during suchNon-Monetary Default Cure Period, there is nomaterial adverse effect onthe Mortgage Loan Borrower or the Mortgaged Property or the value ofthe MortgageLoanas aresult ofsuchNon-MonetaryDefault or theattemptedcure.Solong as the NoteA-B Holder is exercising its cure rights orthe Non-Monetary Default CurePeriodhas not expired, such Non-MonetaryDefaultshall not be treatedasanEvent ofDefault by the Lead SeniorNoteholder (including for purposes of (i) thedefinitionof “SequentialPayEvent,” (ii) accelerating the MortgageLoan, modifying, amending orwaiving any provisionsofthe MortgageLoanDocumentsor commencing proceedingsfor foreclosure or thetaking of title bydeed-in-lieuof foreclosure orother similar legal proceedings withrespectto the Mortgaged Property,or (iii)treatingtheMortgage Loan as aSpecially Serviced Mortgage Loan);provided that suchlimitation shall not prevent the LeadSenior Noteholder from collecting default interest or late charges from the MortgageLoan Borrower.
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Section 12.Purchase Rights of the SeniorNotes by the Note A-B Holder.
ThisSection 12 shall not have any force ofeffect until thedate, if any, when Note A-B is no longer an asset of the Lead Securitization Trust.
The Note A-B Holder shall have the right, by written notice to the Senior Noteholders (a “Noteholder PurchaseNotice”),delivered at anytime an EventofDefault under the MortgageLoan has occurred and is continuing, to purchase,in immediately available funds, each of the SeniorNotes, inwholebut not in part, at the applicableDefaulted MortgageLoanPurchasePrice. Upon the delivery of theNoteholderPurchaseNotice tothe Senior Noteholders,the SeniorNoteholders shall sell (and the NoteA-B Holder shall purchase)the Senior Notes (including, withoutlimitation,any Notes therein) at theapplicable Defaulted MortgageLoanPurchasePrice, on a date(the “Defaulted NotePurchase Date”) (i) notmorethan ten (10) Business Days after thewritten exercise by the NoteA-B Holder to purchase the SeniorNotes or(ii) notmorethan thirty (30) days after the written exercise by theNoteA-B Holder to purchase the SeniorNotes if theNote A-B Holderdeposits 10% of theDefaulted MortgageLoanPurchase Price withthe Senior Noteholders within ten(10) Business Daysafter thewritten exerciseofthe NoteA-B Holder to purchase the SeniorNotes. The NoteholderPurchase Noticeshall contain astatement that theNoteA-B Holder’sfailure to purchase theSenior Notes on aDefaulted Note PurchaseDatewill result in thetermination of suchNoteholder’s right. The Note A-B Holder agreesthat the sale of the SeniorNotesshallcomply with allrequirements of theServicing Agreement and that all costs andexpensesrelated thereto shall be paid by the NoteA-B Holder. The Defaulted MortgageLoan Purchase Price shall be calculated by the Lead Senior Noteholder (or theServiceron itsbehalf) three (3) Business Days priortothe Defaulted NotePurchase Date (and such calculationshallbeaccompanied by alisting ofall amounts included inthe Defaulted MortgageLoan PurchasePrice andshall, absent manifest error, be binding upon the Note A-B Holder.Concurrently with the payment tothe Senior Noteholders in immediately available funds of its respective portion ofthe applicableDefaulted MortgageLoanPurchase Price,the SeniorNoteholders shall executeat the sole cost and expenseof theNote A-B Holder infavor of the NoteA-B Holder assignment documentation thatwill assignthe Senior Notes and the MortgageLoan Documents without recourse, representations orwarranties (except each of the SeniorNoteholders will represent and warrantthat it had good andmarketable title to, was the sole ownerand holder of, and had power and authority todeliver the MortgageLoan orNote,as applicable,free and clear of allliensandencumbrances). The right ofthe Note A-B Holder to purchase the Senior Notes shallautomatically terminate upon a foreclosure sale, sale by power of sale or acceptance of a deed in lieu offoreclosurewithrespect to the MortgagedProperty(and the LeadSenior Noteholder shall give the NoteA-B Holder fifteen (15) days’notice of itsintent with respect toany such action). Notwithstanding the foregoing sentence, iftitle to the Mortgaged Property is transferredtothe LeadSenior Noteholder (or a designeeonitsbehalf) less thanfifteen (15)days afterthe acceleration of theMortgage Loan, theLead Senior Noteholder shallnotify the NoteA-B Holder of such transferand the NoteA-B Holder shall have afifteen (15) day period from the date of such noticefromthe LeadSenior Noteholder to deliver theNoteholderPurchaseNotice to theSenior Noteholders,in which casethe Note A-B Holderwillbeobligated to purchase theMortgagedProperty, inimmediately available funds, within such fifteen (15) day period at the applicable Defaulted Mortgage Loan Purchase Price forsuch Note(s).
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Section 13.Representations of the NoteA-B Holder. The Note A-B Holder represents, and it isspecifically understood and agreed, thatitisacquiring Note A-B for its own account in the ordinary course of its business and the SeniorNoteholders shall otherwise havenoliability orresponsibility to theNoteA-B Holder except asexpresslyprovided herein or foractions that aretakenoromitted to be taken by any SeniorNoteholder that constitute gross negligence orwillful misconduct or thatconstitutea breach of thisAgreement.TheNote A-B Holder represents andwarrantsthat the execution, delivery andperformanceof thisAgreementis within its corporate powers, has been duly authorized by allnecessary corporate action, and does notcontraveneits charteror any law or contractualrestriction binding upon the Note A-B Holder, and that thisAgreement is the legal, valid and binding obligation of the Note A-B Holder enforceableagainst the Note A-B Holderin accordance withits terms, except as suchenforcement may belimited by bankruptcy, insolvency,reorganization, moratorium or othersimilarlawsaffecting the enforcement ofcreditors’ rights generally, and by general principles of equity (regardless ofwhether suchenforceability isconsideredin aproceedinginequity or at law), and except that theenforcementof rights with respectto indemnification and contribution obligationsmaybelimitedbyapplicable law. The Note A-B Holder represents and warrantsthatit is duly organized, validlyexisting,in good standing andpossessesof alllicenses and authorizations necessary to carry on its business.The Note A-B Holder represents and warrants that(a) this Agreement has been duly executed and delivered bythe Note A-B Holder, (b) to the NoteA-B Holder’sactualknowledge, all consents, approvals, authorizations, ordersorfilings of orwith any court orgovernmental agency or body, if any, required for the execution, delivery and performance of thisAgreement by the NoteA-B Holder havebeen obtained or made, (c) to the NoteA-B Holder’s actual knowledge, there is no pendingaction, suit orproceeding,arbitration orgovernmental investigation against the NoteA-BHolder, an adverseoutcome of which wouldmateriallyandadversely affect itsperformance under this Agreement and (d) theacquisition andholdingofNote A-B will notresult in anon-exempt violation of any applicable federal, state orlocal law that ismaterially similar toSection 406 of ERISA orSection 4975 of the Code.
The NoteA-B Holder acknowledges that theSenior Noteholders donot owe the Note A-B Holder any fiduciary duty with respect toany action takenunder the Mortgage LoanDocumentsand, except asprovided herein, need not consult with theNote A-B Holder with respect to any action taken byany Senior Noteholder in connection with the Mortgage Loan.
The Note A-BHolder expressly and irrevocablywaivesfor itselfand any Person claiming through or under the NoteA-B Holder any and allrights thatit mayhave under Section 1315 of theNew York RealProperty Actions andProceedings Law or the provisions ofany similar law in thejurisdiction where theMortgagedProperty is locatedwhich purports to give a junior loan Noteholder the rightto initiate any loan enforcement or foreclosure proceedings.
Section 14.Representations of the SeniorNoteholders. Each of theSeniorNoteholders represents andwarrants that the execution, delivery and performance of this Agreement iswithin its respective corporate powers, has beendulyauthorized by all necessary corporate action, and does not contravene such SeniorNoteholder’scharter or any law or contractualrestriction binding upon suchSeniorNoteholder,and thatthis Agreementis thelegal, valid and binding obligation ofsuchSenior Noteholder,enforceable against it inaccordancewith itsterms. Each of the SeniorNoteholdersrepresents andwarrants that it is duly organized,
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validly existing, ingood standing and possession of all licenses and authorizations necessary tocarry onits business. Each ofthe Senior Noteholders represents and warrants that (a) thisAgreement has beendulyexecuted and delivered by suchSenior Noteholder, (b) to suchSeniorNoteholder’s actual knowledge,allconsents, approvals,authorizations,ordersorfilings of or with any court orgovernmentalagency or body, if any, requiredfor the execution, delivery andperformance of this Agreement by such Senior Noteholder have been obtained ormade and
(c) to each of theSenior Noteholder’s actual knowledge, there is no pending action, suit orproceeding, arbitrationor governmental investigation against such SeniorNoteholder, an adverseoutcomeof which wouldmaterially and adversely affect itsperformanceunder thisAgreement.
Section 15.IndependentAnalysis of theNote A-B Holder.The Note A-B Holder acknowledges that it has, independently andwithout reliance upon any Senior Noteholder, except with respectto therepresentationsandwarranties provided by the Senior Noteholders herein, and based on such documents and information as it hasdeemed appropriate,madeits own credit analysis and decision to purchase NoteA-B and the NoteA-B Holder acceptsresponsibility therefor. The NoteA-B Holder herebyacknowledges that, other than the representations and warranties provided herein, theSenior Noteholders havemadenorepresentations orwarranties withrespect to the MortgageLoan, subject to such representations and warranties asprovided by the SeniorNoteholders herein, and that theSenior Noteholders shall have no responsibilityfor(i) the collectibility of the MortgageLoan, (ii) the validity,enforceability or legal effect ofany of the Mortgage Loan Documents or the title insurance policy orpolicies orany survey furnished or to be furnished to the SeniorNoteholders in connection with theoriginationof the Mortgage Loan, (iii) thevalidity, sufficiency oreffectivenessof the lien created or to be created by theMortgage LoanDocuments,or (iv) the financial condition of the Mortgage LoanBorrower. Each Senior Noteholder assumes all risk of loss inconnection with itsSeniorNoteexcept as specifically set forth herein.The Note A-B Holderassumes all risk of loss in connection withNoteA-Bexcept as specifically set forth herein.
Section 16.NoCreation of a Partnership or Exclusive PurchaseRight.Nothing contained in thisAgreement, and no action taken pursuant hereto shall bedeemed to constitutethe relationship created hereby among any of theNoteholders as apartnership,association, joint venture or other entity.No Noteholder shall have any obligation whatsoever to offer to any other Noteholder the opportunityto purchase aNoteinterest in any future loansoriginated by suchNoteholderor itsAffiliates and if anyNoteholderchooses to offer to any other Noteholder theopportunity to purchase a Note interest in anyfuture mortgage loansoriginated by suchNoteholder orits Affiliates,suchoffer shall be atsuch purchaseprice and interest rate as such Noteholder chooses, in its sole andabsolute discretion. No Noteholder shall have any obligation whatsoever to purchasefrom any otherNoteholder aNote interest in any future loansoriginated by suchNoteholder or itsAffiliates.
Section 17.Not a Security.None of the Notesshallbedeemed to be asecurity within the meaning of theSecurities Act of 1933 or the Securities Exchange Act of 1934.
Section 18.Other Business Activities of theNoteholders. Each Noteholder acknowledges that eachofthe other Noteholders orits Affiliates may make loans or otherwise extend credit to, and generally engage in any kind of business with, any Affiliate of theMortgage
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LoanBorrowerRelated Party, and receivepaymentson such other loans orextensionsof credit toMortgageLoanBorrower Related Parties and otherwise actwith respect thereto freely and without accountability in thesame manner as if thisAgreementand the transactionscontemplatedherebywere not in effect.
Section 19.Sale of the Notes.
(a) The NoteA-B Holder agrees that itwill not Transfer all or any portion of NoteA-B except thatthe Note A-B Holder shall havethe right to Transfer its respective Note, or any portion thereof,without theconsent ofthe Senior Noteholders or any otherPerson(i) to a Qualified Transferee, or (ii)to an entity that is not aQualified Transferee; provided that:
(A) in thecase of both clauses (i) and (ii) such transferwouldnot causeNote A-B to be directly held bymorethan five (5) Persons, and
(B) in the case ofclause (ii)the Note A-B Holder obtains (1) prior to aSecuritization, the consent of the Lead SeniorNoteholder, which shall not be unreasonably withheld, delayed or conditioned and (2) after aSecuritization, Rating AgencyConfirmation(and for avoidance of doubt, noconsent of the Lead Senior Noteholder shall be required after aSecuritization).
IfNoteA-B is held bymore than oneNote A-B Holder at anytime, the holders of amajorityof the NoteA-B Principal Balance shallimmediately appoint arepresentative to exercise all rights ofNote A-B hereunder.
Notwithstanding the foregoing, without theSenior Noteholders’prior consent, whichmay bewithheld in theirsole discretion, the Note A-B Holder shall not Transfer all oranyportion ofNote A-B to the Mortgage LoanBorroweror a MortgageLoan BorrowerRelatedParty and any suchTransfer shall be absolutely null and voidandshall vest no rights in the purportedtransferee. The Note A-B Holder agreesthat it will pay the reasonabledocumentedexpenses of the SeniorNoteholders (including all expenses of the MasterServicerandthe SpecialServicer) inconnection with any suchTransfer by theNote A-B Holder.The Agent shallprovide two (2)Business Days priorwritten notice toeach Rating Agency of anyTransfer of Note A-B.
(b) Notwithstanding the foregoing, the NoteA-B Holder shall havethe right, without the need to obtain the consent of theSenior Noteholders or any other Person, toTransfer 49% or less (inthe aggregate) of itsinterest inNote A-B toany Person;provided that any such Transfer shall bemadeinaccordance with theother terms ofthis Section 19.
(c) All Transfers ofNote A-B, otherthan transfer of aparticipation interestinNoteA-B or a transfer of NoteA-B to a Securitization, underSections 19(a) and (b) shall bemadeupon written notice to theSenior Noteholders not laterthan five (5) days after the date of suchTransfer, and each transferee shall (i)execute anassignment andassumption agreement wherebysuch transfereerepresentsthat it is a QualifiedTransferee (except inthe case of atransfer of lessthan 49%of NoteA-B) orthat theapplicable consent and/orconfirmation described inSection19(a) has been obtained andassumes all or aratable portion, as the case may be, of the obligations ofthe Note A-B Holder hereunder with respect toNote A-B from and
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after the date of suchassignment (or, in the case, of apledge,collateralassignment or otherencumbrance made inaccordance withSection 19(g) by the NoteA-B Holder ofNote A-B solelyas security for a loan tothe Note A-B Holdermade by a third-party lender whereby the NoteA-BHolderremains fully liable under thisAgreement,onor before the date on which such lender succeeds to the rights of theNoteA-B Holder byforeclosure or otherwise, such third- partylenderexecutes anagreement that suchlendershall bebound by theterms and provisions of thisAgreement and theobligationsof the NoteA-B Holder hereunder) and (ii) agree in writing to be bound by the ServicingAgreement.
(d) Upon the consummation of aTransferofall or any portion of a Note inaccordancewith thisAgreement, thetransferringPersonshall be released from allliabilityarising under thisAgreement with respect tosuch Note (or the portion thereof that was the subject of such Transfer),for the period after the effectivedate of such Transfer (it being understood and agreed that theforegoing release shall not apply in the case of a sale,assignment,transferor other disposition of a participation interest in a Note as described in clause (e) below). Inconnection with any suchpermitted transfer of a portionof any Note and for all purposes of thisAgreement,theother Noteholders need onlyrecognizethemajority holder of the respective Notes for purposes of notices, consents and othercommunications between the parties and suchmajorityholder of aNote shallbe the only Person authorized hereunder to exercise any rights of the respectiveNoteholder under thisAgreement;provided,however,themajority holder of a Notemay from timetotime designate any other Person as anadditional party entitled toreceive notices, consents and othercommunicationsand/or to exerciserights on behalf of aholder of suchNote hereunder by deliveringwrittennotice thereof to the otherNoteholders, and,fromand after delivery of such notice,such designee shall be soauthorizedhereunder 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 otherdisposition of aparticipation interest in a Note, (i)such Noteholder’s obligations under thisAgreement shallremainunchanged, (ii) suchNoteholder shallremainsolelyresponsible for theperformanceof such obligations, (iii) the other Noteholders and any Personsacting on its behalf shall continue to deal solely and directlywith such Noteholder in connectionwith suchNoteholder’s rights and obligations under thisAgreement and the ServicingAgreement, and (iv) allamounts payable hereunder shall bedeterminedas if suchNoteholder had notsold suchparticipation interest;provided,however, that if the applicable participantis aQualified Transferee (and delivers to the otherNoteholdersa certification from an authorized officerconfirming itsstatusas aQualified Transferee), such Noteholder, bywrittennotice to theother Noteholders, may delegate to suchparticipant such Noteholder’s right toexercise the rights of the Controlling Noteholder hereunder and under the ServicingAgreement;provided,further,however, that upon the occurrence of a Control AppraisalPeriod withrespectto NoteA-B, theaforesaid delegation of rights shall terminate and be of nofurther force and effect.
(f) Each of the SeniorNoteholders shall have the right to Transfer all oranyportion of itsSenior Note without the prior consent of anyNoteholder except that, no Senior Noteholder may Transfer all or any portion of its Senior Notetothe Mortgage Loan Borrower or a MortgageLoanBorrower Related Party and any suchTransfer to the MortgageLoan Borrower
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or a Mortgage LoanBorrower Related Party shall be absolutelynull and void and shall vest no rights in the purported transferee.
(g) Notwithstanding anything to thecontrary contained herein, each Noteholdermaypledge or transfer(a “Pledge”) itsNotetoany entity(otherthan the Mortgage LoanBorrower or any Affiliatethereof)that haseither extended acredit orrepurchase facility to, or isinvolved in thefacilitation of asecurities issuance program for, suchNoteholder and that, in each case,iseither aQualified Transferee or afinancial institution whose long-term unsecured debt is rated atleast “A” (orthe equivalent) or better by each Rating Agency (a “Note Pledgee”), or to a Person with respect to which a Rating AgencyConfirmation has been obtained, onterms andconditions setforthin thisSection 19(g), itbeing furtheragreed that a financing provided by a NotePledgee to aNoteholder or any Affiliate thatControls such Noteholder thatissecured by suchNoteholder’s interest in itsrespectiveNote and isstructured as a repurchasearrangement,shallqualify as a “Pledge”hereunder;provided that aNote Pledgee that is not aQualified Transferee may not take title to the pledged Notewithout (a) prior toSecuritization,the consent of eachother Noteholder and (b) after Securitization,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 thenameand addressof the applicableNote Pledgee), each of the otherNoteholders agrees to acknowledge receipt of such notice and thereafteragrees: (i) to givesuch Note Pledgeewritten notice ofany default by the pledging Noteholder inrespectof its obligations under thisAgreementofwhichdefault suchNoteholder has actual knowledge and which shallbegivensimultaneously with thegivingof such notice tothepledging Noteholder; (ii) toallowsuchNotePledgee a period of ten (10) Business Days to cure a default by the pledging Noteholders in respect of its obligations tothe other Noteholders hereunder, but suchNotePledgee shall not beobligatedto cure any suchdefault;(iii) that noamendment,modification,waiverorterminationof thisAgreement shall be effectiveagainstsuchNote Pledgee without the written consent of such Note Pledgee, which consent shall not be unreasonably withheld, conditionedor delayed and which consent shall be deemed to begiven if NotePledgeeshall fail to respond to any requestfor consenttoany suchamendment, modification,waiverortermination within 10 BusinessDaysafterrequest thereof; (iv) that such otherNoteholdersshallaccept any cure bysuch Note Pledgee of any default ofthe pledging Noteholder which such pledging Noteholder has the right to effect hereunder, as if such cure weremade by suchpledging Noteholder; (v) that suchother Noteholder or any Servicer shall deliver toNote Pledgee suchestoppel certificate(s) asNote Pledgee shall reasonably request; provided that any suchcertificate(s)shall be in a formreasonably satisfactory to such other Noteholder; and (vi) that, upon written notice (a “Redirection Notice”) to the otherNoteholdersand any Servicer by suchNote Pledgee that the pledgingNoteholder is indefault, beyond any applicablecureperiods with respect to the pledgingNoteholder’s obligations to suchNotePledgee pursuant tothe applicable creditagreement or otheragreement relating to thePledge between the pledgingNoteholderand suchNote Pledgee(which notice need not be joined inor confirmed by thepledgingNoteholder), anduntil suchRedirection Notice iswithdrawn orrescinded by suchNote Pledgee,Note Pledgee (or at anytime that the pledgingNoteholder otherwise directs that such payments bemade to Note Pledgee pursuant to aseparate notice) shall be entitled to receive any payments that any Noteholder orServicer would otherwise be obligated to pay to thepledging Noteholder fromtimetotime pursuant to this Agreement or anyServicing Agreement. Any pledging Noteholder hereby unconditionally andabsolutely releasesthe other Noteholders and anyServicer from anyliabilityto the pledging Noteholder on account
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of any Noteholders’ orServicer’s compliance with anyRedirection Notice believed by anyServicerorsuch other Noteholder in good faith tohave been delivered by a NotePledgee. Note Pledgeeshallbepermitted toexercise fully itsrights and remedies againstthepledgingNoteholder (and accept anassignmentinlieuofforeclosure as to suchcollateral),inaccordance with applicable law, the pledgeagreement,repurchaseagreementorsimilar agreementbetween the pledgingNoteholderand the NotePledgeeand thisAgreement.Insuch event, orifthe pledging Noteholder otherwise assigns its interests to theNotePledgee, the otherNoteholdersand any Servicer shall recognize suchNotePledgee (and anytransfereeother than the Mortgage LoanBorroweror anyAffiliate thereof that is also aQualified Transferee at anyforeclosureorsimilarsale held by suchNote Pledgee or any transfer in lieu offoreclosure),and its successor and assigns, as the successor tothe pledging Noteholder’s rights, remedies and obligations under thisAgreement, and any suchNotePledgee orQualified Transferee shall assume in writing the obligations of the pledging Noteholderhereunder accruing from and after suchTransfer (i.e., realization upon the collateral by suchNote Pledgee) andagreesto be bound by theterms and provisions of thisAgreement. The rights of a Note Pledgeeunder thisSection19(g) shallremain effective as to any Noteholder (and any Servicer) unless anduntil such NotePledgee shall have notified any suchNoteholder (and any Servicer, as applicable) inwritingthat itsinterest inthe pledged Note hasterminated.
(h) Notwithstanding any provisionsherein tothe contrary, if aconduit (“Conduit”) which isnotaQualified Transferee providesfinancingto aNoteholder then such Noteholder shall have the right to grant a security interest in itsNote to such Conduit notwithstanding that such Conduit is not aQualified Transferee, if the following conditions are satisfied:
(i) The loan(the “Conduit Inventory Loan”)madeby the Conduit to such Noteholder tofinance the acquisition and holding of itsNote will require a third party (the “Conduit Credit Enhancer”)to provide credit enhancement;
(ii) The Conduit Credit Enhancer and conduitmanager (if Moody’srates the Securitization) willbe aQualified Transferee;
(iii) SuchNoteholder will pledge (or sell, transfer or assign aspartof arepurchase facility) itsinterestinthe applicableNote tothe Conduit as collateral for the Conduit Inventory Loan;
(iv) The Conduit Credit Enhancer andthe Conduit will agree that, ifsuchNoteholder defaults under the Conduit Inventory Loan, or if theConduit is unable to refinance its outstandingcommercial paper even if thereisnodefault by such Noteholder, theConduitCredit Enhancerwill purchase theConduitInventory Loanfrom the Conduit, and the Conduit will assign the pledge of suchNoteholder’s Note to theConduit Credit Enhancer; and
(v) Unless the Conduit isin fact then a Qualified Transferee, theConduit will not,without obtaining theconsentof each otherNoteholder andRatingAgencyConfirmation (in the case ofNoteA-B), have any greaterright toacquiretheinterests in the Note pledged by suchNoteholder,by foreclosure orotherwise, than would any other
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purchaserthatisnot aQualified Transferee at aforeclosure sale conducted by a Note Pledgee.
Section 20.Registration of Transfer. Inconnection with any Transfer of a Note (butexcluding any NotePledgeeunless and until itrealizes on itsPledge),exceptfor transfer of a participation interest, a transferee shallexecuteanassignment andassumption agreementasdescribed in Section19(c) wherebysuchtransferee assumes all of theobligationsof the applicableNoteholder hereunder with respect tosuch Note thereafter accruing and agrees to be bound by theterms of thisAgreement,including therestriction onTransferssetforth in Section 19,from and after the date of suchassignment. Notwithstanding the preceding sentence, a Trustee shall not be required to execute anassignment andassumption agreement in connection with anyTransfer of a Note if theobligationsareassumed pursuant to the Securitization ServicingAgreement.No transfer of aNote may bemade unless it is registered on the Note Register, and the Agent shall not recognize anyattemptedorpurported transfer ofany Note in violation of theprovisions ofSection 19 and this Section 20. Any such purported transfer shall be absolutely null and void and shall vest no rights in thepurportedtransferee.Each Noteholder desiring to effect such transfer shall, and does hereby agreeto, indemnify the Agent and any other Noteholder against any liability thatmay result if the transfer is notmadein accordance with the provisions of thisAgreement.
Section 21.Registration of theNotes. The Agent shall keep or cause to be kept at the Agent Office books (the “Note Register”)fortheregistration and transfer ofthe Notes. The Agent shall serveas the initial Note registrar and theAgentherebyacceptssuchappointment. The names and addresses of the holders of the Notes, the principalamount (and stated interest) of the Notes owing to eachNoteholderand thenamesand addresses of any transfereeofany Note of whichtheAgent has receivednotice, in the form of acopy of the assignment andassumption agreement referred to in Section19(c),shall be registered in the Note Register.The Person inwhosename aNoteis so registeredshall bedeemed and treated asthe sole ownerand holder thereof for all purposes of thisAgreement, except in the case of theInitialNoteholderswho may hold theirNotesthrough anominee. Upon request of a Noteholder, the Agent shall provide such party with thenames and addresses of the Noteholders.Tothe extent another party is appointed as Agent hereunder, each Noteholder hereby designates such person as its agent under this Section 21 solely for purposes ofmaintaining the Note Register.
Section 22.Statement of Intent.The Agent and eachNoteholder intend that the Notes be classified and thearrangementhereby bemaintained, in amanner consistent with rulesapplicable to agrantor trust under subtitleA, chapter1, subchapter J, part I, subpart E of the Code that is afixed investment trust within themeaningofTreasury Regulation §301.7701- 4(c), and the parties will not take any action inconsistentwith suchclassification.It is neither the purpose nor the intent of thisAgreement to create apartnership,joint venture, “taxable mortgage pool” or associationtaxable as a corporationamong the parties.
Section 23.NoPledge. This Agreement shall not bedeemedto represent a pledge of any interestinany MortgageLoanby any of theNoteholders. Except as otherwise provided in this Agreement and the ServicingAgreement, none of theNoteholders,other than the Lead Note Holder, shall have a direct ownership interestin any property taken as security for any MortgageLoan,provided,however, that if any suchproperty or the proceeds of any sale,
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lease orother disposition thereof shall be received, then each ofsuch Noteholders shall be entitled toreceive itsshareof such application in accordancewith thetermsof thisAgreement and/or theServicing Agreement.
Section 24.Governing Law;Waiver ofJury Trial. THIS AGREEMENT AND ANYCLAIM, CONTROVERSY ORDISPUTE ARISING UNDER OR RELATEDTOTHIS AGREEMENT, THE RELATIONSHIPOF THE PARTIES TOTHISAGREEMENT,AND/OR THE INTERPRETATION AND ENFORCEMENT OF THERIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCEWITHTHEINTERNAL LAWS AND DECISIONS OF THESTATEOF NEWYORK, WITHOUT REGARD TO THE CHOICE OFLAW RULES THEREOF. EACHOF THE PARTIES HEREBY IRREVOCABLYWAIVESALL 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 ITSPROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF,TOTHE NON- EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEWYORK, THEFEDERAL COURTS OF THE UNITED STATESOF AMERICA FORTHE SOUTHERN DISTRICT OF NEWYORK, 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 ITMAY NOW OR HEREAFTER HAVE TO THEVENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT INAN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BEEFFECTED BY MAILING ACOPY THEREOF BYREGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHERADDRESS OF WHICHAPARTY HEREIN SHALL HAVE BEEN NOTIFIED; AND
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHERMANNER PERMITTED BYLAWOR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.
Section 26.Modifications;Amendment. This Agreement shall not be modified, cancelled orterminatedexcept by aninstrumentinwriting signed by the parties hereto (other than as setforthin Section 5(c)) and, afterSecuritization, anymodificationthatmaterially affects the rights of theSeniorNoteholdersor the NoteA-B Holder shallbesubject toRating
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AgencyConfirmation,except that no Rating AgencyConfirmationshall berequiredin connection with amodificationtocureanyambiguity or tocorrectorsupplement any provision herein thatmaybe defective or inconsistentwith any otherprovisionshereinor withthe ServicingAgreement.
Section 27.Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and theirrespective successorsandpermitted assigns.Each of theMaster Servicer, SpecialServicer, andrelated Trustee is an intendedthird-party beneficiary of this Agreement. Except as provided herein, none of the provisions of thisAgreementshall befor the benefit of or enforceable by any Person not a party hereto.Subject toSection 19, eachNoteholder may assign or delegate its rights or obligations under thisAgreement. Upon any suchassignment,the assignee shall be entitled to all rights and benefits of the assigning Noteholder,hereunder, including, without limitation, the right tomake furtherassignments.
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 thisAgreement inPortable Document Format (PDF) or byfacsimile transmission shall beeffectiveasdelivery of amanually executed original counterpart of thisAgreement.
Section 29.Captions. The titles and headings ofthe paragraphsofthis Agreement have been inserted for convenience of reference only and are not intended to summarize orotherwise describe the subjectmatterof theparagraphs and shall notbe given any consideration in theconstruction of thisAgreement.
Section 30.Severability.Wherever possible,each provisionofthis Agreement shall be interpreted insuch manner as tobe effective and valid under applicable law, but ifanyprovision of thisAgreement shall be prohibited by orinvalid under applicable laws, such provisionshall be ineffective tothe extent of such prohibition or invalidity,without invalidating theremainderof such provision orthe remaining provisions ofthisAgreement.
Section 31.EntireAgreement. This Agreementconstitutestheentireagreement amongthe parties hereto withrespectto the subjectmatter contained in this Agreement and supersedes all prioragreements, understandingsand negotiationsbetween theparties.
Section 32.WithholdingTaxes.
(a) If theLead Senior Noteholder or the Mortgage LoanBorrower shall berequired by law todeduct andwithhold Taxes from interest, fees or otheramountspayable to a Noteholder with respect to theMortgage Loan as a result ofsuchNoteholder constituting a Non-Exempt Person, the LeadSeniorNoteholder inits capacity asservicer, shall be entitled to do so with respect to suchNoteholders’ interest in suchpayment (all withheld amounts beingdeemedpaid to suchNoteholder),provided that theLead Senior Noteholder shallfurnish such Noteholder with astatementsetting forth the amount of Taxeswithheld, the applicable rate and other information whichmay reasonably be requestedfor purposes of assisting suchNoteholder
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to seek anyallowable credits ordeductions for theTaxessowithheld in eachjurisdiction inwhich such Noteholder is subject to tax.
(b) EachNon-Lead Senior Noteholder and the NoteA-B Holder shalland hereby agrees to indemnify theLead Senior Noteholderagainstandhold the Lead Senior Noteholderharmless from and against any Taxes, interest,penalties and reasonable attorneys’ fees anddisbursementsarising or resulting from any failure of theLead Senior Noteholder (or the Servicer on itsbehalf) towithhold Taxes frompayment made to the Non-LeadSeniorNoteholder or theNote A-B Holder in reliance upon anyrepresentation,certificate,statement, document orinstrument made or provided by any Non-LeadSenior Noteholder orNoteA-B Holder to the LeadSenior Noteholder in connection with theobligationof theLead Senior Noteholder towithholdTaxes frompayments made to the Non-LeadSenior Noteholder or the NoteA-B Holder, it beingexpressly understood and agreed that the LeadSenior Noteholder shall be absolutely andunconditionally entitled toaccept any such representation, certificate,statement, document orinstrumentas being true and correct in all respects and tofully relythereon without any obligation or responsibility to investigate or tomake anyinquirieswith respect tothe accuracy, veracity,correctnessorvalidity ofthe same.
(c) Contemporaneously with the execution of thisAgreementand fromtime totime as reasonablyrequested by the Lead Senior NoteholderorServicer during the term of thisAgreement, eachNon-Lead SeniorNoteholder and the Note A-B Holder shalldeliver to the Lead Senior Noteholder or Servicer,as applicable, evidencesatisfactoryto the Lead Senior Noteholder substantiating whether suchNoteholder is aNon-Exempt Personand whethertheLeadSenior Noteholder is obligated underapplicablelaw to withhold Taxes onsums paid to itwith respectto the Mortgage Loan or otherwise under thisAgreement. Without limiting theeffect of the foregoing, (i) if aNon-Lead Senior Noteholder or theNote A-BHolderiscreated or organized under the laws of the United States, any state thereof or theDistrict ofColumbia, itshall satisfy the requirements of the preceding sentence by furnishing to the Lead Senior Noteholder an Internal Revenue Service Form W-9 and (ii) if a Non-LeadSenior Noteholder or theNoteA-B Holder is not created or organized under the laws of the UnitedStates, any state thereof or the District ofColumbia, and if the payment of interest orother amounts by the MortgageLoan Borrower is treatedfor United Statesincome tax purposes asderivedinwhole or part from sourceswithintheUnited States, suchNoteholder shall satisfy therequirements of the preceding sentence by furnishing to theLead Senior Noteholder InternalRevenue Service FormW-8ECI,FormW-8IMY (with appropriateattachments)or FormW-8BEN orForm W-8BEN-E, as applicable, or successorforms, asmay be required fromtimetotime, duly executed by such Noteholder. The LeadSenior Noteholder shall not beobligatedtomake anypayment hereunderto any Non-Lead Senior Noteholder or the Note A-B Holder inrespectof itsNote or otherwise until suchNoteholder shall have furnished tothe LeadSenior Noteholder the requestedforms, certificates,statementsordocuments.
Section 33.Custody of Mortgage Loan Documents. The originals of all oftheMortgageLoan Documents (otherthanthe Non-LeadSenior Notesand NoteA-B) shall be held by the LeadSeniorNoteholder (or a custodian acting on behalf of the LeadSenior Noteholder) on behalf of theregistered holders of the Notes.Notwithstanding anything to the contrary in this Agreement, upon a Securitization of theLead SeniorNote, the originals ofall of the Mortgage
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LoanDocuments(other than theNotes not included in suchsecuritization)shall be held by the custodian for the LeadSecuritization.
Section 34.Notices.All noticesrequired hereunder shall be given by (i)telephone (confirmed promptly in writing)or shall be inwriting and personally delivered, (ii) sent byfacsimile transmission (during business hours) if the sender on thesame day sends aconfirming copy of such notice by reputable overnight deliveryservice (charges prepaid), (iii)reputable overnight deliveryservice (charges prepaid) or (iv)certified United Statesmail,postage prepaid return receiptrequested, and addressed to the respectiveparties at theiraddresses set forth on ExhibitBhereto, or atsuch other address as any partyshall hereafter inform the other party by written notice given asaforesaid. All written notices sogiven shall be deemed effective upon receipt.
All notices and reports(including, withoutlimitation,AssetStatus Reports)required to bedelivered hereunder by theLead SeniorNoteholder (orthe Serviceronitsbehalf) to theControlling Noteholder (or itsControlling NoteholderRepresentative),or by the ControllingNoteholder (or itsControlling Noteholder Representative) to the LeadSenior Noteholder (or theServiceron itsbehalf), shall also bedelivered (or reportsmade available by access to awebsite)by theapplicable party tothe otherNoteholders.
Section 35.Broker.Each Noteholder represents to eachotherthat nobroker was responsible for bringing about this transaction.
Section 36.Certain Matters Affecting the Agent.
(a) The Agentmay request and/or rely upon and shall be protectedin acting or refraining from acting upon anyofficer’s certificate or assignmentandassumption agreement delivered to the Agent pursuant to Section 20;
(b) The Agentmay consult with counsel and any opinion of counselshall be full andcomplete authorization and protection inrespectofany action taken or suffered oromittedby it hereunder in good faith and inaccordance withsuchopinion of counsel;
(c) The Agent shall be under noobligation to institute, conduct ordefend any litigation hereunder or inrelation hereto at the request,order or direction of any of the Noteholders pursuant to the provisions of thisAgreement, unless it hasreceived indemnity reasonably satisfactory to it;
(d) The Agentor any ofits directors, officers,employees, Affiliates, agents or “control” personswithinthemeaning of theAct, shall not bepersonally liable for any action taken, suffered oromittedby it in good faith andreasonably believed by the Agent to be authorized or within thediscretion or rights or powers conferred upon it by thisAgreement;
(e) The Agent shall not be bound tomake any investigation into thefactsormatters stated in anyofficer’s certificate orassignment andassumption agreement delivered to the Agent pursuant to Section 20; and
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(f) The Agentmay execute any of the powers hereunder or performanyduties hereunder either directly orby orthrough agents or attorneys but shall notbe relieved of its obligations hereunder.
Section 37.Termination ofAgent. The Agent may beterminated at anytimeupon ten (10) days prior written notice from theLead Senior Noteholder. In theevent that the Agent isterminated pursuant tothisSection37, all of itsrights and obligations under this Agreement shall beterminated,other than any rights orobligationsthat accrued prior to the date of such termination.
The Agentmay resign at anytime upon ten (10) days’ priornotice, solong as a successor Agent, reasonably satisfactory to the Noteholders, has agreed to be bound by thisAgreementand perform the dutiesof the Agent hereunder. Natixis, asInitialAgent,may transfer its rights and obligations tothe Servicer, as successor Agent, at anytime without the consent ofanyNoteholder.Natixis, as InitialAgent,shallpromptly anddiligently attempttocause such Servicer to act as successor Agent, and, if such Servicer declinesto act in such capacity,shall promptly anddiligently attempt to cause asimilar servicer to actas successor Agent.The termination orresignationofsuch Servicer, asServicer under the Servicing Agreement, shall bedeemed aterminationor resignation of suchServicer asAgentunder thisAgreement.
Upon a Securitization of theLead Senior Note, the CertificateAdministrator shall automatically become and be the Agent.
Section 38.Servicing of theLoan. Pursuant to the ServicingAgreement,the MasterServicer(whose identitymaychangefrom timetotime as provided inthe Servicing Agreement) will be appointed as the servicerofthe MortgageLoanand the SpecialServicer(whoseidentity may changefrom timetotime as provided in theServicing Agreement) will be appointedasthespecialservicer of the MortgageLoan,and theparties agree that the Master Servicerand Special Servicer will service the MortgageLoan on behalf of eachNoteholderpursuant to theServicing Agreement and subject to theterms hereof. The Senior Noteholders shallnot enter into anyamendmentto anyServicing Agreement that would materially and adverselyaffectthe rights or interests of the otherNoteholders without obtaining such other Noteholders’ prior written consent which shall not be unreasonably withheld,conditioned or delayed.
Section 39.Conflict. To theextent of anyinconsistency between the Servicing Agreement, on onehand,and thisAgreement(without regard toany references inthis Agreement to the effectthata given defined term shall havethemeaningof such defined term or an analogous term in theServicing Agreement), on the other,this Agreement shall control.
Section 40.Resizing.Notwithstanding anyotherprovision of thisAgreement, for so long asNatixis or anAffiliate of Natixis(collectively,an “OriginalEntity”)is the owner of any Note (the “OwnedNote”),such Original Entity shall have the right, subject to thetermsof the MortgageLoan Documents, tocause the Mortgage Loan Borrower to executeamendedand restated notes oradditionalnotes(ineithercase, “NewNotes”)reallocating the principal and/orinterestof the OwnedNoteto such New Notes; orseveringtheOwned Noteinto one ormore
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further “component” notes in the aggregate principal amountequal to the then outstanding principal balance of the OwnedNoteprovided that(i)theaggregate principal balance of all outstanding New Notes followingsuch amendments is nogreater than the aggregate principal of the OwnedNote prior to suchamendments,(ii)immediately after givingeffecttosuch amendment,theweighted averageinterest rate of the Notes will be equal to the initialweightedaverage interest rate ofthe Notes immediately prior to suchamendment,(iii) such reallocated orcomponent notes shall beautomaticallysubject to theterms of thisAgreement,and (iv) the OriginalEntity holding the New Notes shall notify the SeniorNoteholders, the MasterServicer, theSpecial Servicer, the Certificate Administrator and theTrusteein writing of suchmodified allocations and principalamounts.ANew Note may bestructured as apari passu or senior/subordinate note. If theLead Senior Noteholder sorequests, the Original Entity holding the New Notes (and any subsequent holder ofsuch Notes) shallexecuteaconfirmation of the continuing applicability of thisAgreementto theNew Notes, as somodified. Exceptfor the foregoing reallocation and formodifications pursuant to theServicing Agreement (as discussed inSection 5), no Notemaybemodified or amended without theconsentof its holder and the consent ofthe relatedNoteholder. In connection with theforegoing (provided the conditions set forth in(i) through (iv), as certified by the OriginalEntity, on which certification the Master Servicer can rely),the Master Servicer is hereby authorizedanddirectedto executeamendments to the Mortgage LoanDocuments and this Agreement on behalf ofany or all ofthe Noteholders, as applicable, solely for the purpose of reflecting suchreallocation ofprincipal and/or interest.If a New Note iscreated out of the LeadSeniorNote, theOriginal Entity shall designatewhichNotewill eligiblefor “control” during a Control AppraisalPeriod and the holders of all other New Notes will betreated as“Non-Controlling SeniorNoteholders.” If aNew Note iscreated out of the LeadNote, the Lead Senior Noteholder shalldesignate which Notewill be in theLead Securitization.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the Initial Noteholders has 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-1 Holder and Initial Agent | ||
By: | /s/ Donald MacMaster | |
Name: Donald MacMaster\ | ||
Title: Vice President | ||
By: | /s/ Matthew Feast | |
Name: Matthew Feast | ||
Title: Director |
NCMS 2019-10K: CO-LENDER AGREEMENT (A-1)
NATIXIS REAL ESTATE CAPITAL LLC | ||
as Initial Note A-2 Holder | ||
By: | /s/ Donald MacMaster | |
Name: Donald MacMaster | ||
Title: Vice President | ||
By: | /s/ Matthew Feast | |
Name: Matthew Feast | ||
Title: Director |
NCMS 2019-10K: CO-LENDER AGREEMENT (A-2)
NATIXIS REAL ESTATE CAPITAL LLC | ||
as Initial Note A-3 Holder | ||
By: | /s/ Donald MacMaster | |
Name: Donald MacMaster | ||
Title: Vice President | ||
By: | /s/ Matthew Feast | |
Name: Matthew Feast | ||
Title: Director |
NCMS 2019-10K: CO-LENDER AGREEMENT (A-3)
NATIXIS REAL ESTATE CAPITAL LLC | ||
as Initial Note A-4 Holder | ||
By: | /s/ Donald MacMaster | |
Name: Donald MacMaster | ||
Title: Vice President | ||
By: | /s/ Matthew Feast | |
Name: Matthew Feast | ||
Title: Director | ||
NCMS 2019-10K: CO-LENDER AGREEMENT (A-4)
NATIXIS REAL ESTATE CAPITAL LLC | ||
as Initial Note A-5 Holder |
By: | /s/ Donald MacMaster | |
Name: Donald MacMaster | ||
Title: Vice President | ||
By: | /s/ Matthew Feast | |
Name: Matthew Feast | ||
Title: Director | ||
NCMS 2019-10K: CO-LENDER AGREEMENT (A-5)
NATIXIS REAL ESTATE CAPITAL LLC | ||
as Initial Note A-6 Holder | ||
By: | /s/ Donald MacMaster | |
Name: Donald MacMaster | ||
Title: Vice President | ||
By: | /s/ Matthew Feast | |
Name: Matthew Feast | ||
Title: Director | ||
NCMS 2019-10K: CO-LENDER AGREEMENT (A-6)
NATIXIS REAL ESTATE CAPITAL LLC | ||
as Initial Note A-7 Holder | ||
By: | /s/ Donald MacMaster | |
Name: Donald MacMaster | ||
Title: Vice President | ||
By: | /s/ Matthew Feast | |
Name: Matthew Feast | ||
Title: Director |
NCMS 2019-10K: CO-LENDER AGREEMENT (A-7)
NATIXIS REAL ESTATE CAPITAL LLC | ||
as Initial Note A-B Holder | ||
By: | /s/ Donald MacMaster | |
Name: Donald MacMaster | ||
Title: Vice President | ||
By: | /s/ Matthew Feast | |
Name: Matthew Feast | ||
Title: Director |
NCMS 2019-10K: CO-LENDER AGREEMENT (A-B)
EXHIBITA
MORTGAGE LOAN SCHEDULE
A. | Description of Mortgage Loan: |
MortgageLoan: |
TenThousand |
MortgageLoanBorrower: |
SM10000 Property,LLC |
Date of the MortgageLoanand the Mortgage: |
April12, 2019 |
InitialPrincipal Amount of Mortgage Loan: |
$350,000,000.00 |
Location of Mortgaged Property: |
TenThousand Luxury Rental Tower,Los Angeles, California |
Initial Maturity Date: |
May 6, 2029 |
B. | Descriptionof Notes: |
Initial Note A-1 Principal Balance: |
$100,000,000.00 |
Initial Note A-2 Principal Balance: |
$35,000,000.00 |
Initial Note A-3 Principal Balance: |
$25,000,000.00 |
Initial Note A-4 Principal Balance: |
$20,000,000.00 |
Initial Note A-5 Principal Balance: |
$15,000,000.00 |
Initial Note A-6 Principal Balance: |
$5,000,000.00 |
Initial Note A-7 Principal Balance: |
$20,000,000.00 |
Initial Note A-B Principal Balance: |
$130,000,000.00 |
A-1 |
Initial Note A-1 Percentage Interest: |
28.571% |
Initial Note A-2 Percentage Interest: |
10.000% |
Initial Note A-3 Percentage Interest: |
7.143% |
Initial Note A-4 Percentage Interest: |
5.714% |
Initial Note A-5 Percentage Interest: |
4.286% |
Initial Note A-6 Percentage Interest: |
1.429% |
Initial Note A-7 Percentage Interest: |
5.714% |
Initial NoteA-BPercentageInterest: |
37.143% |
Senior Note Rate: |
4.150% |
Note A-B Rate: |
4.150% |
Note DefaultInterest Spread: | A rate per annumequal to the lesser of (a) the Maximum Legal Rateminusthe Interest Rate and (b) four percent (4%). |
A-2 |
EXHIBITB
InitialNoteholders:
NATIXIS REAL ESTATE CAPITAL LLC
Notice Address:
NatixisRealEstateCapital LLC
1251 Avenue of the Americas
New York, New York 10020
Attention: RealEstate Administration
Facsimile: (212) 891-5777
Email: USCIBSAFAssetManagementTeam@natixis.com
withacopy to:
Natixis NorthAmericaLLC
Office of the General Counsel
1251 Avenue of the Americas
New York, New York 10020
for legal notices, withacopy to:
CMBSlegal.notices@natixis.com
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EXHIBITC
PERMITTED FUND MANAGERS
Westbrook Partners
iStarFinancialInc.
CapitalTrust
Archon Capital, L.P.
WhitehallStreetReal Estate Fund, L.P.
The Blackstone Group
Normandy Real Estate Partners
Dune Real Estate Partners
AllianceBernstein
Rockwood
RREEF Funds
Hudson Advisors
ArtemisReal Estate Partners
Apollo Real Estate Advisors
Colony Capital, Inc.
Praedium Group
FortressInvestmentGroup, LLC
Lonestar Opportunity Funds
Clarion Partners
Walton Street Capital,LLC
Starwood Financial Trust
BlackRock, Inc.
Eightfold Real EstateCapital,L.P.
Rialto Capital Management, LLC
Rialto Capital Advisors, LLC
Raith Capital Partners,LLC
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SCHEDULEI
If aNon-Lead Senior Note isincluded in aSecuritization,itshall cause its respectiveNon-Lead Securitization Servicing Agreement tocontain provisions to the effect that:
(i) theapplicable master servicer and trustee forsuch Securitization shall berequired tonotifythemaster servicer,special servicerand trustee of each other Securitization ofthe amount of any P&I Advance it hasmade withrespect to the Note included in such Securitization within two Business Days ofmaking such advance;
(ii) if the applicablemaster servicer, special servicer ortrustee determines that a proposedP&I Advance, ifmade,or anyoutstanding P&I Advance previouslymade, would be, or is, as applicable, anonrecoverable advance,the master servicershall provide the other servicerswrittennotice of such determination within 2Business Days after suchdeterminationwasmade;
(iii) in the event aNon-Lead Senior Noteholder isresponsible for its proportionate share of anynonrecoverable advances (orany other portion of a nonrecoverable advance) (andadvance interest thereon) or otherfee or expense, and fundsreceivedwith respect to a Non-LeadSenior Noteare insufficient to cover suchamounts, (x) therelated master servicerwill be required to pay the MasterServicer,Special Serviceror Trustee, asapplicable, out of general funds in thecollection account(orequivalentaccount) established under theNon-Lead Securitization ServicingAgreement and (y) if theSecuritization Servicing Agreement permits the MasterServicer, Special Servicer orTrusteeto payitself from the general account of the trust established under theLead Securitization, then themaster servicer under the Non-LeadSecuritization Servicing Agreement will berequiredto reimbursethe trust established underthe Lead Securitization out of general funds in thecollection account(or equivalent account) established under theNon-Lead Securitization Servicing Agreement;
(iv) each of the MasterServicer and the SpecialServicer shallbeindemnified (as and to the extent the trust established underthe Lead Securitization is required to indemnify each such party)against anyclaims, losses,penalties, fines, forfeitures, legal fees andrelated costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with anyservicing agreement that relate solely to itsservicing of the MortgageLoan,as applicable, and themaster servicer under the Non-LeadSecuritization Servicing Agreement will berequired toreimbursetheMaster Servicer, Special Servicer or Trustee, as applicable, out of general funds in the collectionaccount (or equivalent account) establishedundertheNon-Lead Securitization Servicing Agreement for the Non-LeadNoteholder’sproportionate share of such amounts;
(v) each ofthe trustee and themaster servicer under a Non-LeadSecuritization Servicing Agreement, asapplicable, shall acknowledge that,
Schedule I-1 |
(i)eachof theMaster Servicer and theTrusteewill be a third partybeneficiary under suchNon-Lead Securitization ServicingAgreementwithrespectto any provisions therein relating to (1) thereimbursement for suchNon-LeadNoteholder’s proportionate share of any nonrecoverable advancesmade with respect to such Non-LeadSeniorNote by the MasterServicerorthe Trustee and (2) as tothe MasterServicer only, theindemnificationof theMaster Servicer against the Non-LeadNoteholder’sproportionate share of anyclaims,losses, penalties,fines, forfeitures, legal fees and related costs,judgmentsand any other costs,liabilities, fees and expenses, incurred in connectionwithanyServicing Agreement orNon-Lead Securitization ServicingAgreement andrelatingto the Non-LeadSenior Note and (ii)the Special Servicer will be athird party beneficiary under suchNon-Lead Securitization ServicingAgreement with respect toanyprovisions therein relating to (1) thereimbursement for theNon-LeadSenior Noteholder’s proportionate share of any nonrecoverable advancesmade with respect tosuch Non-Lead Senior Note by the SpecialServicer (itbeing understoodthat the SpecialServicer is not required tomake any Advances) and(2) the indemnification of the SpecialServiceragainst suchNon-Lead Senior Noteholder’s proportionate share of anyclaims, losses,penalties,fines, forfeitures,legal fees and related costs,judgmentsand any other costs, liabilities, fees and expenses, incurred in connection withanyServicingAgreement orNon- LeadSecuritization Servicing Agreement andrelatingtosuch Non-Lead Senior Note; and
(vi) theMaster Servicer and the SpecialServicer shall be thirdparty beneficiaries of the foregoing provisions.
Schedule I-2 |