Exhibit 4.16


 


Execution Version


 


 


 


 


CO-LENDER
AGREEMENT


 


Dated as of June
4, 2019 by and among


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.	Payments Prior to a Sequential Pay Event	28
	Section 4.	Payments Following a Sequential Pay Event	30
	Section 5.	Administration of the Mortgage Loan	32
	Section 6.	Appointment of the Controlling Noteholder Representative	40
	Section 7.	Special Servicer	42
	Section 8.	Payment Procedure	43
	Section 9.	Limitation on Liability of the Noteholders	44
	Section 10.	Bankruptcy	44
	Section 11.	Cure Rights of the Note A-B Holder	45
	Section 12.	Purchase Rights of the Senior Notes by the Note A-B Holder	46
	Section 13.	Representations of the Note A-B Holder.	47
	Section 14.	Representations of the Senior Noteholders	48
	Section 15.	Independent Analysis of the Note A-B Holder	49
	Section 16.	No Creation of a Partnership or Exclusive Purchase Right	49
	Section 17.	Not a Security	49
	Section 18.	Other Business Activities of the Noteholders	49
	Section 19.	Sale of the Notes	50
	Section 20.	Registration of Transfer	54
	Section 21.	Registration of the Notes	54
	Section 22.	Statement of Intent	54
	Section 23.	No Pledge	54
	Section 24.	Governing Law; Waiver of Jury Trial	55
	Section 25.	Submission To Jurisdiction; Waivers	55
	Section 26.	Modifications; Amendment	55
	Section 27.	Successors and Assigns; Third Party Beneficiaries	56
	Section 28.	Counterparts	56
	Section 29.	Captions	56
	Section 30.	Severability	56
	Section 31.	Entire Agreement	56
	Section 32.	Withholding Taxes	56
	Section 33.	Custody of Mortgage Loan Documents	57
	Section 34.	Notices	57
	Section 35.	Broker	58
	Section 36.	Certain Matters Affecting the Agent	58
	Section 37.	Termination of Agent	58
	Section 38.	Servicing of the Loan	59
	Section 39.	Conflict	59
	Section 40.	Resizing.	59






    	 	-i-	 



     


    




THIS
CO-LENDER AGREEMENT (the “Agreement”), dated as of June
4, 2019, by and among NATIXIS REAL ESTATE
CAPITAL LLC, a Delaware limited liability company
(“Natixis”), having an address at 1251 Avenue of the Americas,
New York, New York 10020 (in its capacity as the initial
owner of Note A-1, the “Initial Note A-1 Holder”,
and in its capacity as the initial agent, the “Initial Agent”),
Natixis, having an address at 1251 Avenue of the
Americas, New York, New York 10020 (in its capacity as the initial owner of Note A-2, the “Initial Note A-2
Holder”), Natixis, having an address at 1251 Avenue of the Americas,
New York, New York 10020 (in its capacity as the
initial owner of Note A-3, the “Initial Note
A-3 Holder”), Natixis, having
an address at 1251 Avenue of the Americas,
New York, New York 10020 (in its capacity as the initial owner of Note A-4,
the “Initial Note A-4 Holder”), Natixis,
having an address at 1251 Avenue of the Americas,
New York, New York 10020 (in its capacity as the initial owner of Note
A-5, the “Initial Note A-5 Holder”), Natixis, having an address
at 1251 Avenue of the Americas, New York, New York 10020 (in its capacity
as the initial owner of Note A-6, the
“Initial Note A-6 Holder”),
Natixis, having an address at 1251 Avenue of the
Americas, New York, New York 10020 (in its capacity as the initial owner of Note A-7, the “Initial Note A-7
Holder”) and Natixis, having an address at 1251
Avenue of the Americas, New York, New York 10020 (in its capacity as the initial
owner of Note A-B, the “Initial Note
A-B Holder”).


 


W I T N E S S
E T H:


 


WHEREAS, pursuant to
the Loan Agreement (as defined herein) Natixis
originated a certain loan (the “Mortgage Loan”) described on the
schedule attached hereto as Exhibit A (the “Mortgage Loan Schedule”)
to the mortgage loan borrower described
on the Mortgage Loan Schedule (the “Mortgage Loan
Borrower”), which is (a)
evidenced by (i) that certain Promissory Note A-1 in the original principal amount
of $100,000,000.00 dated as of April 12, 2019 (as amended, modified
or supplemented, “Note A-1”)
made by the Mortgage Loan Borrower in favor
of the Initial Note A-1 Holder,
(ii) that certain Promissory Note A-2
in the original principal amount of $35,000,000.00
dated as of April 12, 2019 (as amended,
modified or supplemented, “Note A-2”) made
by the Mortgage Loan Borrower in favor
of the Initial Note A-2 Holder, (iii) that certain Promissory Note A-3 in
the original principal amount of $25,000,000.00 dated as of April 12, 2019 (as
amended, modified or supplemented, “Note
A-3”) made by the Mortgage Loan Borrower
in favor of the Initial Note A-3 Holder, (iv)
that certain Promissory Note A-4 in the original
principal amount of $20,000,000.00 dated as of April 12, 2019 (as amended,
modified or supplemented, “Note A-4”) made
by the Mortgage Loan Borrower in favor
of the Initial Note A-4 Holder, (v) that
certain Promissory Note A-5 in the original principal amount of $15,000,000.00
dated as of April 12, 2019 (as amended, modified or supplemented,
“Note A-5”) made by the Mortgage Loan
Borrower in favor of the Initial Note A-
5 Holder, (vi) that certain Promissory Note A-6 in the original principal
amount of $5,000,000.00 dated as of April 12, 2019 (as amended, modified or supplemented,
“Note A-6”, together with Note A-1,
Note A-2, Note A-3, Note A-4
and Note A-5, the “Senior Note”) made
by the Mortgage Loan Borrower in favor
of the Initial Note A-6 Holder, and (vii) that
certain Promissory Note A-B in the principal amount of $150,000,000.00 dated
as of April 12, 2019 (as amended, modified or supplemented,
the “Original Note A-B”)
made by the Mortgage Loan Borrower in favor
of the Initial Note A-B Holder,
and (b) secured by a certain first deed of trust



    	 		 



     


    







lien (as
amended, modified or supplemented, the
“Mortgage”) on one or more parcels of,
or estates in, real property located as described on the Mortgage Loan Schedule (collectively,
the “Mortgaged Property”);


 


WHEREAS,
Natixis has elected to amend and
restate the Original Note A-B and split such note
into (i) that certain Promissory Note A-7 in the
original principal amount of $20,000,000
dated as of May 13, 2019 (as amended, modified or supplemented,
“Note A-7”) made by the Mortgage Loan
Borrower in favor of the Initial Note
A-7 Holder, and (ii) that certain Promissory Note A-B in the
principal amount of $130,000,000.00 dated as of May
13, 2019 (as amended, modified or supplemented,
“Note A-B”) made
by the Mortgage Loan Borrower in favor of the Initial
Note A-B Holder (Note A-1, Note
A-2, Note A-3, Note A-4, Note A-5,
Note A-6, Note A-7 and Note
A-B, respectively and individually, each, a “Note” and
collectively the “Notes”);


 


WHEREAS,
Natixis intends to sell, transfer and assign all of its
right, title and interest in and
to Note A-1 and Note A-B to Natixis
Commercial Mortgage Securities, LLC (“Depositor”), as depositor,
pursuant to a Mortgage Loan Purchase Agreement dated as of June 4,
2019, by and between Depositor, as purchaser, and Natixis, as seller, and Depositor,
as purchaser, intends to transfer its right, title and interest in and to Note
A-1 and Note A-B to Wells Fargo Bank,
National Association, as trustee for the Natixis Commercial Mortgage Securities Trust
2019-10K under a pooling and servicing agreement, dated as of June
4, 2019 (the “NCMS Trust 2019-10K PSA”), among
Natixis Commercial Mortgage Securities, LLC, as depositor, KeyBank
National Association, as master
servicer and as special servicer and Wells
Fargo Bank National Association, as certificate administrator
(such sales, transfers and assignments,
the “Note A-1 Securitization”);


 


WHEREAS,
the Initial Note A-1 Holder, the Initial
Note A-2 Holder, the Initial Note A-3
Holder, the Initial Note A-4 Holder, the Initial Note
A-5 Holder, the Initial Note A-6
Holder, the Initial A-7 Holder and the
Initial Note A-B Holder desire to enter
into this Agreement to memorialize
the terms under which they and their successors
and assigns shall hold Note A-1, Note A-2,
Note A-3, Note A-4, Note A-5,
Note A-6, Note A-7 and Note A-B,
respectively.


 


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


 


Section 1.
Definitions; Conflicts. References to a “Section”,
“preamble” or the “recitals” are, unless otherwise specified,
to a Section, preamble or the recitals of this Agreement.
Capitalized terms used but not otherwise defined herein shall have the meaning
assigned to such term or an analogous term in (i) prior to the Securitization Date, the Model Servicing
Agreement and (ii) from and after
the Securitization Date, the Securitization
Servicing Agreement. To the extent of any inconsistency between this Agreement
and the Servicing Agreement, the terms
of this Agreement shall control. Whenever
used in this Agreement, the following
terms shall have the respective meanings
set forth below unless the context clearly requires otherwise.






    	 	2	 



     


    

 


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


 


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


 


“Additional
Servicing Expenses” shall mean (a) all property
protection advances, fees and/or expenses incurred by and reimbursable to
any Servicer, Trustee, Operating Advisor
or Certificate Administrator with regard to the
Mortgage Loan pursuant to the Servicing
Agreement, and (b) all interest accrued on Advances made
by (x) any Servicer or Trustee with regard to the Mortgage
Loan in accordance with the terms
of the Servicing Agreement or (y) any Non-Lead Servicer
or Non-Lead Trustee with regard to a Non-Lead Note in accordance with the terms
of the related Non-Lead Securitization Servicing Agreement.


 


“Advance
Interest Amount” shall mean
interest payable on Advances, as specified in the Servicing Agreement or a Non-Lead Securitization
Servicing Agreement, as applicable.


 


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


 


“Advances”
shall have the meaning assigned to such
term or an analogous term in the Servicing Agreement
or a Non-Lead Securitization Servicing Agreement,
as applicable.


 


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


 


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


 


“Agent
Office” shall mean the designated
office of the Agent in the State
of New York, which office as of the date of this Agreement
is located at Natixis Real Estate Capital LLC, 1251 Avenue of the
Americas, New York, New York 10020, and which is the address to which notices
to and correspondence with the Agent should be directed. The
Agent may change the address of its designated office by notice to the Noteholders
sent in accordance with this Agreement.


 


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


 


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


 



    	 	3	 



     


    






“Appraisal Reduction Amount”
shall mean:


 


(A)            
prior to the Securitization Date, after the occurrence of an
Appraisal Trigger Event, an amount (calculated immediately
following the later of the date on which the Appraisal Trigger Event occurs and the
date on which the applicable Appraisal was obtained) equal to the excess, if any, of:


 


(a)               
the sum of, without duplication, (i) the outstanding Principal Balance of
the Mortgage Loan as of the applicable
date of determination, (ii) to the extent not
previously advanced by or on behalf of the Master Servicer
or the Trustee, all unpaid interest on the Mortgage Loan
through the most recent Due Date prior to the
date of determination (exclusive of any portion thereof that represents
Default Interest), (iii) all other amounts (excluding principal, default
interest, late charges, penalty charges, exit fees, Prepayment Premiums and any similar
amounts) due and unpaid with respect to the Mortgage Loan,
(iv) all related unreimbursed Advances made
by or on behalf of (plus all accrued and unpaid interest on such Advances (other than Unliquidated
Advances) payable to) the Master Servicer, the Special Servicer
and/or the Trustee with respect to Mortgage Loan, (v) any other unpaid trust
fund expenses (excluding any costs that do not relate directly to the Mortgage
Loan), and (vi) all currently due
and unpaid real estate taxes and assessments, insurance premiums
and, if applicable, ground rents, and any unfunded improvement
or other applicable reserves, in respect
of the related Mortgaged Property or REO Property, as the case may
be (in each case, net of any amounts
escrowed with the Master Servicer or the Special Servicer
for such items); over


 


(b)              
an amount equal to the sum of: (i) the excess, if any, of (x)
90% of the appraised value of the Mortgaged Property (or REO Property) as
determined by the applicable Appraisal
or any letter update of such Appraisal, over (y) the amount of any obligations secured
by liens on such Mortgaged Property (or REO Property) that are prior
to the lien of the Mortgage Loan; plus (ii) the amount of any Escrow
Payments and/or reserve funds held by
the Master Servicer or the Special Servicer
with respect to the Mortgage Loan, the related Mortgaged Property or any related
REO Property that are not being held in respect of any real estate taxes
and assessments, insurance premiums or, if applicable,
ground rents; plus (iii) the amount of any
letter of credit constituting additional security for
the Mortgage Loan and that may be applied towards the reduction of the principal
balance of the Mortgage Loan; plus (iv)
the amount of any Threshold Event
Collateral then held by the Servicer; and


 


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


 


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


 


“Appraisal Trigger Event”
shall mean:


 


(i)  
prior to the Securitization Date,
the earliest of the date on which the Mortgage
Loan: (a) becomes a modified
Mortgage Loan following the occurrence
of a Servicing Transfer Event, (b) becomes
an REO Loan, (c) with respect
to which a receiver or similar
official is appointed and continues for thirty (30) days in such capacity
in respect of the Mortgaged



    	 	4	 



     


    




Property,
(d) the Mortgage Loan Borrower becomes the subject of bankruptcy, insolvency
or similar proceedings or, if such proceedings
are involuntary, such proceedings remain
undismissed for sixty (60) days, (e) any Monthly Payment
(other than a Balloon Payment) becomes
one hundred twenty (120) days or more
delinquent, or (f) the Mortgage Loan
Borrower fails to make when due any Balloon Payment
and the Mortgage Loan Borrower does not deliver to the Master Servicer or
the Special Servicer, on or before the
due date of the Balloon Payment, a written and
fully executed (subject only to customary
final closing conditions) refinancing commitment from an acceptable lender
and reasonably satisfactory in form
and substance to the Master Servicer (and the Master Servicer
shall promptly forward such commitment to the Special Servicer)
which provides that such refinancing will occur within ninety (90) days after
the date on which the Balloon Payment will become due (provided that if either such
refinancing does not occur during that time or the Master Servicer
is required during that time
to make any P&I Advance in respect
of the Mortgage Loan, an Appraisal Trigger
Event will occur immediately); and


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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



    	 	5	 



     


    




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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Control
Appraisal Period” shall mean any period, with respect to the Mortgage Loan, if
and for so long as:


 


(a) (I)
(1) the initial Note A-B Principal Balance
minus (2) the sum (without duplication) of (x) any payments of principal
(whether as principal prepayments or
otherwise) allocated to, and received on, Note
A-B after the date of creation of Note A-B,


(y) any
Appraisal Reduction Amount for the Mortgage Loan that is allocated to Note A-B and
(z) any losses realized with respect to the Mortgaged Property
or the Mortgage Loan that are allocated to Note A-B,
plus (3) the Threshold Event Collateral then held by the Servicer, is
less than (II) twenty-five percent (25%)
of the remainder of the (x) initial Note A-B
Principal Balance less (y) any payments of principal (whether as principal
prepayments or otherwise) allocated to, and received by, the Note
A-B Holder on Note A-B after the date of creation of Note A-B; or


 


(b) any
interest in Note A-B is held by
the Mortgage Borrower or Mortgage Loan Borrower
Related Party, or the Mortgage Borrower or Mortgage Loan Borrower Related
Party would otherwise be entitled to exercise
the rights of the Note A-B Holder as the Controlling Noteholder.


 


“Controlling
Noteholder” shall mean as of any date of determination
(i) the Note A-B Holder, unless a Control
Appraisal Period has occurred and is continuing or (ii) if a Control Appraisal
Period has occurred and is continuing the Note
A-1 Holder.


 


At
any time that a Note held by the Controlling Noteholder is included in a Securitization,
the rights of the “Controlling Noteholder” may be exercised by
the holders of the majority of the class
of securities issued in such Securitization designated as the “controlling class” or such other class(es)
otherwise assigned the rights to exercise the rights of the “Controlling
Noteholder”



    	 	6	 



     


    




hereunder,
as and to the extent provided in the Servicing
Agreement (and the applicable Servicing Agreement shall contain limitations on
the rights of the Controlling Noteholder that can be
exercised by a certificate holder that is the Mortgage
Loan Borrower or has certain relationships with the Mortgage Loan Borrower).


 


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


 


“Credit Risk
Retention Rule” shall mean
Section 15G of the Exchange Act as added by Section
941 of the Dodd-Frank Act and implemented by Regulation
RR (15 U.S.C.


§78o-11).


 


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


 


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


 


“Default Interest”
shall mean interest on the Mortgage Loan
at a rate per annum


equal
to the Note Default Interest Spread.


 


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


 


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


 


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



    	 	7	 



     


    

 





Purchase Price
include amounts due or payable to the Note A-B Holder
exercising the purchase right under this Agreement.


 





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


 


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


 


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


 





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


 


“First
Non-Lead Note” shall mean
the first Senior Note, other than Note A-1, that is included as part of the
securitization of one or more mortgage loans.


 


“First
Non-Lead Note Servicing Agreement”
shall mean the “trust and servicing
agreement” or the “pooling and servicing agreement” entered
into in connection with the First Non-Lead
Senior Note Securitization.


 


“First
Non-Lead Note Securitization”
shall mean the first sale by a Non-Lead
Senior Noteholder of all or any
portion of a Non-Lead Senior Note to
a depositor who will in turn include all or such portion (as
applicable) of such Non-Lead Senior Note as part of the securitization of
one or more mortgage loans.


 


“First
Non-Lead Note Securitization Date” shall mean
the closing date of the First Non-Lead Note Securitization.


 


“First
Non-Lead Note Trust Fund” shall mean
the trust formed pursuant to the First Non-Lead
Note Servicing Agreement.


 


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


 








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


 


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


 


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


 


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



    	 	8	 



     


    

 





“Initial
Note A-3 Holder” shall have
the meaning assigned to such term in
the preamble to this Agreement.


 


“Initial
Note A-4 Holder” shall have
the meaning assigned to such term in
the preamble to this Agreement.


 


“Initial
Note A-5 Holder” shall have
the meaning assigned to such term in
the preamble to this Agreement.


 


“Initial
Note A-6 Holder” shall have
the meaning assigned to such term in
the preamble to this Agreement.


 


“Initial
Note A-7 Holder” shall have
the meaning assigned to such term in
the preamble to this Agreement.


 


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


 


“Initial
Noteholders” shall mean, collectively, the Initial Note A-1 Holder,
the Initial Note A-2 Holder, the Initial
Note A-3 Holder, the Initial Note A-4
Holder, the Initial Note A-5 Holder, the Initial
Note A-6 Holder, the Initial Note A-7 Holder and the Initial Note
A-B Holder.


 


“Insolvency
Proceeding” shall mean any proceeding under Title 11
of the United States Code (11
U.S.C. Sec. 101 et seq.)
or any other insolvency, liquidation, reorganization or other similar
proceeding concerning the Mortgage Loan
Borrower, any action for the dissolution of the Mortgage Loan Borrower, any
proceeding (judicial or otherwise) concerning the application
of the assets of the Mortgage Loan Borrower for the benefit of its creditors,
the appointment of or any proceeding seeking the appointment
of a trustee, receiver or other similar custodian for all or any substantial
part of the assets of the Mortgage Loan Borrower or any other action concerning
the adjustment of the debts of the Mortgage Loan
Borrower, the cessation of business by the Mortgage Loan Borrower, except
following a sale, transfer or other disposition of all or substantially
all of the assets of the Mortgage Loan
Borrower in a transaction permitted under the Mortgage Loan
Documents; provided, however, that following
any such permitted transaction affecting the title to
the Mortgaged Property, the Mortgage Loan Borrower for purposes of this Agreement
shall be defined to mean the successor
owner of the Mortgaged Property from
time to time as may be permitted
pursuant to the Mortgage Loan Documents; provided, further, however, that for
the purposes of this definition, in the event
that more than one entity comprises the Mortgage Loan
Borrower, the term “Mortgage Loan Borrower” shall refer to any such entity.


 


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


 


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


 


“Interim Servicing Agreement”
shall mean: NOT APPLICABLE.



    	 	9	 



     


    




 





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


 


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


 


“Lead
Securitization” shall mean during
the period (a) from and after the First Non-Lead Note
Securitization, if any, and prior to the Note A-1 Securitization,
the trust established under the First Non-Lead
Note Securitization and (b) from and after the Note A-1
Securitization, the trust established under the Note A-1 Securitization.


 


“Lead
Senior Note” shall mean during the period (i) from and after
the First Non- Lead Note Securitization,
if any, and prior to the Note A-1 Securitization, the First
Non-Lead Note and (ii) from and after the Note A-1 Securitization, Note A-1.


 


“Lead Senior Noteholder” shall mean
the holder of the Lead Senior Note.


 


“Lead
Servicer” shall mean
during the period (a) from and after
the First Non- Lead Note Securitization,
if any, and prior to the Note A-1 Securitization,
the servicer and/or special servicer designated under the First Non-Lead Note Servicing Agreement
and (b) from and after the Note A-1 Securitization,
the servicer and/or special servicer designated under the Note A-1 Servicing Agreement.


 


“Lead
Trustee” shall mean during
the period (a) from and after the First Non-
Lead Note Securitization, if any, and prior to the Note
A-1 Securitization, the trustee designated under the First Non-Lead Note
Securitization and (b) from and after the Note A-1 Securitization, the trustee designated
under the Note A-1 Securitization.


 


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


 


“Loan
Agreement” shall mean
that certain Loan Agreement, dated as
of April 12, 2019, between Natixis, as
lender, and SM 10000 Property, LLC, as borrower, as the
same may be further amended, restated, renewed,
extended, modified or supplemented from time
to time, subject to the terms hereof.


 


“Major Decision” shall mean:


 


(i)   prior to
the Securitization Date:






    	 	10	 



     


    

 


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


 


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


 


(c)   
any exercise of remedies under the Mortgage Loan,
including the acceleration of the Mortgage Loan or initiation of any proceedings
under the Mortgage Loan Documents or any acquisition of the
Mortgaged Property or any interest therein by foreclosure, deed-in-lieu
of foreclosure, settlement or otherwise;


 


(d)   
any sale of the Mortgage Loan or REO Property for less
than “par”;



 


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


 


(f)   
any substitution or release of real property collateral for the Mortgage
Loan (other than substitutions or releases of immaterial and non-income producing
real property collateral or in connection with a condemnation action) except, in each
case, as expressly permitted by the Mortgage
Loan Documents;


 


(g)  
any determination not to enforce a “due-on-sale”
or “due-on-encumbrance” clause (unless
such clause is not exercisable under
applicable law or such exercise is reasonably likely to result in successful legal
action by the Mortgage Loan Borrower);


 


(h)  
any transfer of the Mortgage Property or any portion of the Mortgage Property, or
any transfer of any direct or indirect ownership interest in the Mortgage Loan Borrower
to the extent the lender’s consent under the Mortgage
Loan Documents is required, except in each
case as expressly permitted by the Mortgage Loan
Documents or in connection with a pending or threatened condemnation;


 


(i)    
any consent to incurrence of additional debt by the
Mortgage Loan Borrower or mezzanine debt by a direct or
indirect parent of the Mortgage
Loan Borrower, including modification of the terms
of any document evidencing or securing
any such additional debt and of any intercreditor or subordination agreement executed in connection therewith and any waiver
of or amendment or modification to the
terms of any such document or agreement,
in each case to the extent the lender’s
approval is required by the Mortgage Loan Documents;


 


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



    	 	11	 



     


    




(k)  
approval of the termination, engagement or replacement
of any property manager or parking manager, to
the extent the lender’s approval is
required by the Mortgage Loan Documents;


 


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


 


(m)   any
determination of an Acceptable
Insurance Default under the Mortgage Loan Documents;


 


(n)  
any proposed modification or waiver of
any provision of the Mortgage Loan Documents
with respect to the Mortgage Loan
governing the types, nature or amount of insurance coverage required to be obtained
and maintained;


 


(o)  
approval of casualty/condemnation insurance settlements,
any determination to apply casualty proceeds or condemnation
awards to the reduction of the debt evidenced by
the Mortgage Loan rather than to the
restoration of the Mortgaged Property other than pursuant to the specific terms
of the Mortgage Loan;


 


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


 


(q)  
any determination by the Servicer or the Special Servicer
to transfer the Mortgage Loan
to the Special Servicer with respect to any Mortgage
Loan default or Event of Default that is anticipated but has not yet occurred;
and


 


(r)    
any release of the Mortgage Loan Borrower or of
any guarantor or indemnitor from liability under the Mortgage Loan
Documents.


 


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


 


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


 


“Master Servicer Remittance
Date” shall mean:


 


(a)               
with respect to the Lead Senior Note
and Note A-B, the “Remittance Date”
(or analogous term) as defined in the Servicing
Agreement; and


 


(b)              
with respect to any Non-Lead Senior Note, the earlier of (a) the
“Remittance Date” (or
analogous term) as defined in the Servicing
Agreement or (b) the first Business Day after the “Determination Date”
(or analogous term) as defined in the Servicing
Agreement, provided, however, that no remittance
is required to be made until
two Business Days after receipt of the
scheduled Monthly Payment with respect
to the Mortgage Loan.



    	 	12	 



     


    








“Model
Servicing Agreement” shall
mean the Trust and Servicing Agreement
for the NCMS 2019-NEMA transaction, among Natixis Commercial
Mortgage Securities, LLC, as depositor, KeyBank National Association,
as master servicer, Situs Holdings, LLC, as special servicer, Wells Fargo
Bank, National Association, as certificate administrator, Wells
Fargo Bank, National Association, as trustee and Wells Fargo
Bank, National Association, as custodian.


 





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


 


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


 


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


 


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


 


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


 





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


 


“Morningstar”shall
mean Morningstar Credit Ratings, LLC, or any of its successors
in interest.


 


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


 


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


 


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


 


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


 


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


 


“Mortgage
Loan Principal Balance”
shall mean the sum of the Note
A-1 Principal Balance, the Note A-2 Principal Balance, the Note A-3 Principal Balance,
the Note A-4 Principal Balance, the Note A-5 Principal Balance, the Note A-6 Principal
Balance, the Note A-7 Principal Balance and the Note A-B Principal Balance.



    	 	13	 



     


    

 





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


 


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


 


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


 








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


 








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


 








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


 


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


 


“Non-Controlling
Senior Noteholder” shall mean
each of the Note A-1 Holder (solely during such time
as the Note A-B Holder is the Controlling Noteholder), the
Note A-2 Holder, the Note A-3 Holder, the Note
A-4 Holder, the Note A-5 Holder, the Note A-6
Holder and the Note A-7 Holder.


 


“Non-Exempt Person”
shall mean any Person other than a Person who is either


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


 


“Non-Lead
Master Servicer” shall mean
a master servicer designated under
a Non-Lead Securitization Servicing Agreement.


 


“Non-Lead
Securitization” shall mean
any Securitization of a Senior Note in a Securitization Trust that
is not the Lead Securitization.


 


“Non-Lead
Securitization Servicing Agreement” shall mean
the servicing agreement for a Non-Lead Securitization.


 


“Non-Lead
Senior Note” shall mean during
the period (i) from and after the First
Non-Lead Note Securitization Date, if any, and prior to the Note A-1 Securitization
Date, each of the Senior Notes that is not included in the First
Non-Lead Note Securitization, and (ii) on and after the Note A-1 Securitization
Date, each of the Senior Notes that is not
included in the Note A-1 Securitization.






    	 	14	 



     


    

 





“Non-Lead
Senior Noteholder” shall mean the holder of a Non-Lead Senior Note.


 


“Non-Lead Servicer”
shall mean the Non-Lead Master Servicer or Non-Lead Special Servicer,
as applicable.


 


“Non-Lead Special
Servicer” shall mean
the special servicer designated under any Non-Lead
Securitization Servicing Agreement.


 


“Non-Lead Trustee”
shall mean the trustee designated under any Non-Lead Securitization Servicing
Agreement.


 





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


 


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


 


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


 


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


 


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


 


“Note
A-1 Holder” shall mean the Initial Note
A-1 Holder, or any subsequent holder of Note A-1, together with its successors
and assigns.


 


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


 


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


 


“Note
A-1 Servicing Agreement” shall
mean the “pooling and servicing agreement”
or “trust and servicing agreement”
entered into in connection with the Note A-1 Securitization.


 


“Note
A-1 Securitization” shall
mean the sale by the Note
A-1 Holder of Note A-1 to a depositor who will in turn include Note A-1 as
part of the securitization of one or more mortgage loans.


 


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



    	 	15	 



     


    




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


 


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


 


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


 


“Note A-3” shall have the meaning
assigned to such term in the recitals.


 


“Note
A-3 Holder” shall mean the Initial Note
A-3 Holder, or any subsequent holder of Note A-3, together with its successors
and assigns.


 


“Note
A-3 Percentage Interest” shall mean
a fraction, expressed as a percentage,
the numerator of which is the Note
A-3 Principal Balance and the denominator of which
is the Mortgage Loan Principal Balance.


 


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


 


“Note A-4” shall have the meaning
assigned to such term in the recitals.


 


“Note
A-4 Holder” shall mean the Initial Note
A-4 Holder, or any subsequent holder of Note A-4, together with its successors
and assigns.


 


“Note
A-4 Percentage Interest” shall mean
a fraction, expressed as a percentage,
the numerator of which is the Note
A-4 Principal Balance and the denominator of which
is the Mortgage Loan Principal Balance.


 


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


 


“Note A-5” shall have the meaning
assigned to such term in the recitals.


 


“Note
A-5 Holder” shall mean the Initial Note
A-5 Holder, or any subsequent holder of Note A-5, together with its successors
and assigns.


 


“Note
A-5 Percentage Interest” shall mean
a fraction, expressed as a percentage,
the numerator of which is the Note
A-5 Principal Balance and the denominator of which
is the Mortgage Loan Principal Balance.



    	 	16	 



     


    




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


 


“Note A-6” shall have the meaning
assigned to such term in the recitals.


 


“Note
A-6 Holder” shall mean the Initial Note
A-6 Holder, or any subsequent holder of Note A-6, together with its successors
and assigns.


 


“Note
A-6 Percentage Interest” shall mean
a fraction, expressed as a percentage,
the numerator of which is the Note
A-6 Principal Balance and the denominator of which
is the Mortgage Loan Principal Balance.


 


“Note
A-6 Principal Balance” shall mean,
at any time of determination,
the initial Note A-6 Principal Balance set forth
on the Mortgage Loan Schedule, less any payments
of principal thereon received by the Note A-6 Holder or reductions in such
amount pursuant to Section 3, 4 or
5, as applicable.


 


“Note A-7” shall have the meaning
assigned to such term in the recitals.


 


“Note
A-7 Holder” shall mean the Initial Note
A-7 Holder, or any subsequent holder of Note A-7, together with its successors
and assigns.


 


“Note
A-7 Percentage Interest” shall mean
a fraction, expressed as a percentage,
the numerator of which is the Note
A-7 Principal Balance and the denominator of which
is the Mortgage Loan Principal Balance.


 


“Note
A-7 Principal Balance” shall mean,
at any time of determination,
the initial Note A-7 Principal Balance set forth
on the Mortgage Loan Schedule, less any payments
of principal thereon received by the Note A-7 Holder or reductions in such
amount pursuant to Section 3, 4 or
5, as applicable.


 


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


 


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


 


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


 


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



    	 	17	 



     


    




 


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


 


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


 


“Note Default Interest
Spread” shall mean
the Note Default Interest Spread set
forth on the Mortgage Loan Schedule.


 


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


 


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


 


“Noteholder”
shall mean any of the Note A-1 Holder,
the Note A-2 Holder, the Note A-3 Holder,
the Note A-4 Holder, the Note A-5 Holder,
the Note A-6 Holder, the Note A-7 Holder
and the Note A-B Holder, as applicable.


 


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


 


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


 


“Original Entity”
shall have the meaning assigned to such term in Section 40.


 


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


 


“Owned Note” shall have
the meaning assigned to such term in Section
40.


 


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


 


“Percentage
Interest” shall mean, (i) with respect to the Note A-1 Holder, the
Note A-1 Percentage Interest, (ii) with respect
to the Note A-2 Holder, the Note
A-2 Percentage Interest, (iii) with respect
to the Note A-3 Holder, the Note
A-3 Percentage Interest, (iv) with respect to the Note A-4 Holder, the Note
A-4 Percentage Interest, (v) with respect to the Note
A- 5 Holder, the Note A-5 Percentage Interest,
(vi) with respect to the Note A-6 Holder, the Note A- 6 Percentage
Interest, (vii) with respect to the Note A-7 Holder, the Note
A-7 Percentage Interest and (viii) with respect to the Note
A-B Holder, the Note A-B Percentage Interest, as each may be adjusted from
time to time.


 


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



    	 	18	 



     


    

 





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


 


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


 


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


 


“Principal
Balance” shall mean
any of the Note A-1 Principal Balance,
the Note A-2 Principal Balance, the Note A-3 Principal Balance, the Note A-4
Principal Balance, the Note 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.


 


“Qualified Transferee”
shall mean each of:


 


(a)    the
Initial Noteholders;


 


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


 


(c)   one or more of the following:



 


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


 


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


 


(iii)            
a Qualified Trustee (or in the
case of a CLO, a single purpose
bankruptcy remote entity that contemporaneously assigns or
pledges the Note, or a participation interest therein (or any
portion thereof) to a Qualified Trustee) in connection with (a) a securitization
of, (b) the creation of collateralized debt obligations (“CLO”)
secured by, or (c) a financing
through an “owner trust” of, a Note or any
interest therein (any of the foregoing, a “Securitization
Vehicle”); provided that (1) one or more classes of securities issued by
such Securitization Vehicle is initially rated at least
investment grade by two nationally recognized credit rating agencies;
(2) the special servicer of such Securitization Vehicle has a Required Special
Servicer Rating or is otherwise acceptable to the Rating Agencies rating each Securitization
(such entity, an “Approved Servicer”) and such Approved
Servicer is required to service and administer such Note or any






    	 	19	 



     


    

 





interest
therein in accordance with servicing arrangements for the assets held by the Securitization Vehicle which
require that such Approved Servicer act in accordance with a servicing
standard notwithstanding any contrary direction or instruction from any other Person;
or (3) in the case of a Securitization
Vehicle that is a CLO, the CLO Asset Manager and, if applicable, each Intervening
Trust Vehicle that is not administered and managed
by a CLO Asset Manager that is a Qualified Transferee, are each a Qualified Transferee
under clauses (i), (ii), (iv) or  (v)
of this definition, or



 


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


 


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



 


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


 


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


 


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



    	 	20	 



     


    




 


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


 


For purposes
of this definition only, “Control” means
the ownership, directly or indirectly, in the aggregate of more
than fifty percent (50%) of the beneficial ownership
interests of an entity and the possession, directly or indirectly, of the power
to direct or cause the direction of the
management or policies of an entity, whether
through the ability to exercise voting power, by contract or otherwise (“Controlled”
and “Controlling” have the meaning correlative thereto).


 


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


 


“Rating Agencies” shall mean
any of (a) S&P, (b) Moody’s, (c) Fitch, (d) DBRS,


(e)   Kroll
and (f) Morningstar or, if any of such
entities shall for any reason no longer perform the functions of a securities rating agency, any other nationally recognized
statistical rating agency designated by a Senior Noteholder; provided, however,
that at any time during which a Senior Note is an asset of a Securitization,
“Rating Agencies” or “Rating Agency” shall have the
meaning assigned to such term in the
Servicing Agreement.


 


“Rating
Agency Confirmation” shall
have the meaning given thereto or any
analogous term in the Securitization Servicing Agreement,
including any deemed Rating Agency Confirmation.


 


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


 


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


 


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


 


“REMIC
Provisions” shall mean
provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at Sections 860A through 860G of subchapter
M of Chapter 1 of the Code, and related provisions, and regulations (including
any applicable proposed regulations) and rulings promulgated
thereunder, as the foregoing may be in effect from time
to time.



    	 	21	 



     


    




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


 


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


 


“Required Special
Servicer Rating” shall mean
with respect to a special servicer


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


 


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


 


“Securitization”
shall mean one or more sales by a Senior Noteholder of all or a portion of a Senior
Note to a depositor, who will in turn include
such portion of such Senior Note as part of a securitization of one or more
mortgage loans.


 


“Securitization
Date” shall mean the effective date on which the
Securitization of a Senior Note or portion thereof is consummated.



    	 	22	 



     


    




“Securitization
Servicing Agreement” shall
mean during the period (i) from and after the First Non-Lead Note
Securitization, if any, and prior to the
Note A-1 Securitization, the First Non-Lead Note Servicing Agreement
and (ii) from and after the Note A-1
Securitization, the Note A-1 Servicing Agreement;
provided that in the event the Lead Senior
Note is no longer an asset of the trust
fund created pursuant to the Securitization
Servicing Agreement, the term “Securitization Servicing Agreement” shall
refer to the subsequent servicing agreement entered into
pursuant to Section 2.


 


“Securitization
Trust” shall mean a trust formed
pursuant to a Securitization in which a Senior Note is held.


 


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


 


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


 


“Senior
Noteholder” shall mean the Initial Note
A-1 Holder, the Initial Note A-2 Holder, the Initial Note A-3
Holder, the Initial Note A-4 Holder,
the Initial Note A-5 Holder, the Initial Note A-6
Holder and the Initial Note A-7 Holder or any subsequent holder of a Senior
Note.


 


“Senior
Note Percentage Interest” shall
mean a fraction, expressed as a percentage,
the numerator of which is the sum of the Note A-1
Principal Balance, the Note A-2 Principal Balance, the Note
A-3 Principal Balance, the Note A-4 Principal Balance, the Note A-5 Principal Balance,
the Note A-6 Principal Balance and the
Note A-7 Principal Balance and the denominator of which is the Mortgage
Loan Principal Balance.


 


“Senior
Note Principal Balance” shall mean
the sum of the Note A-1 Principal Balance, the Note A-2 Principal Balance, the Note
A-3 Principal Balance, the Note A-4 Principal Balance, the
Note A-5 Principal Balance, the Note
A-6 Principal Balance and the Note A-7 Principal
Balance.


 


“Senior
Note Rate” shall mean
the Senior Note Rate set forth in the
Mortgage Loan Schedule.


 


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


 


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


 


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



    	 	23	 



     


    




 


“Servicing
Agreement” shall mean
(i) prior to the Securitization Date, the Interim Servicing
Agreement, and (ii) from and after the Securitization Date,
the Securitization Servicing Agreement.


 


“Servicing
Fee Rate” shall have the meaning assigned to such term
in the Servicing Agreement.


 


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


 


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


 


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


 


	 	(C)	its obligation to make Advances;


 


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


 


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


 


(II)
from and after the Securitization Date,
the meaning assigned to such term in
the Securitization Servicing Agreement.



    	 	24	 



     


    




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


 


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


 


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


 


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


 





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


 





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


 


“Transfer”
shall mean any sale, assignment, transfer,
pledge, syndication, participation, hypothecation,
contribution, encumbrance or other disposition
(either (i) directly or


(ii)   indirectly through entering
into a derivatives contract or any other similar agreement, excluding a repo financing
or a Pledge in accordance with Section
19(g)).


 


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


 


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


 


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


 






    	 	25	 



     


    

 





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


 


Section 2.Servicing.


 


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


 


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


 


(c)               
The Securitization Servicing Agreement shall contain the Servicing
Standard (which shall require, among other things,
that each Servicer, in servicing the Mortgage Loan, must
take into account the interests of each Noteholder, taking into account that
Note A-B is junior to the Senior Notes).
In no event may the Securitization Servicing
Agreement change the interest or principal allocable
to, or the amount of any payments due to, any
Noteholder or



    	 	26	 



     


    




materially
increase any Noteholder’s obligations or materially
decrease any Noteholder’s rights, remedies or protections hereunder.


 


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



 


(i)            
any payments received on the Mortgage Loan shall
be paid by the Master Servicer to each of the Noteholders in accordance with Sections
3 and 4 hereof on the Master Servicer Remittance Date;


 


(ii)            
each of the Noteholders shall be entitled to receive, and the Master
Servicer and the Special Servicer shall provide, any information
relating to the Mortgage Loan, the Mortgage Loan
Borrower or the Mortgaged Property as a Noteholder may reasonably request and
would be customarily in the possession
of, or collected or known by, the Master Servicer
or Special Servicer of mortgage loans similar
to the Mortgage Loan and, in any event,
all information that is required to be
provided to holders of the
securities issued by the Securitization Trust
that includes other Notes, including, but not limited to standard
CREFC® reports, subject to limitations on information
that may be made available to a Noteholder
that is a Mortgage Loan Borrower or a Mortgage
Loan Borrower Related Party;


 


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


 


(iv)            
the Securitization Servicing Agreement may not be amended
without the consent of the Note A-B Holder (not to be unreasonably withheld)
if such amendment would materially
and adversely affect the Mortgage Loan or the Note A-B
Holder’s rights with respect thereto;


 


(v)           
provide that any inconsistency between the Servicing Agreement and this Agreement
shall be governed by and determined in
accordance with the terms of this Agreement;
and


 


(vi)            
recognize the respective rights and obligations of the
Noteholders hereunder, including with respect to the making
of payment to the Noteholders and the
rights of the Noteholders to approve matters and make
decisions hereunder.


 


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


 


(f)               
Each Noteholder agrees to pay its Percentage
Interest of (i) any servicing Advances and
any interest accrued and payable on such Advances at the Advance Rate and (ii) any
trust fund expenses and any other fees, costs or expenses incurred in connection with the servicing and administration
of the Mortgage Loan (including, without
limitation, any costs, fees and expenses related to
obtaining any Rating Agency Confirmation and any claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs,
liabilities,



    	 	27	 



     


    




fees
and expenses incurred in connection with the servicing and administration of the Mortgage
Loan and the Mortgaged Property under the Securitization Servicing Agreement) in accordance
with the Securitization Servicing Agreement and this Agreement
to the extent that such amounts remain
unpaid or unreimbursed after funds received from the Mortgage Loan Borrower
for payment of such amounts and any principal
and interest collections allocable to Note A-B has been applied to pay such amounts.


 


(g)              
At any time after the Securitization Date
that the Lead Senior Note is no longer subject to the provisions of the Securitization
Servicing Agreement, the Lead Senior Noteholder shall cause the Mortgage Loan
to be serviced pursuant to a servicing agreement
mutually agreeable to the Non-Lead
Senior Noteholders and the Note
A-B Holder that contains servicing provisions which are the same as or more
favorable to the Note A-B Holder, in substance, to
those in the Securitization Servicing Agreement and
all references herein to the “Securitization Servicing Agreement”
shall mean such subsequent servicing agreement;
provided, however, that (1) if any Non-Lead Senior Note is in a Securitization,
then Rating Agency Confirmation shall have been
obtained from each Rating Agency with respect to such subsequent servicing
agreement and (2) until a replacement servicing
agreement has been entered into, (x) the Lead Senior
Noteholder shall cause the Mortgage Loan to be serviced in accordance with
the servicing provisions set forth in the Securitization
Servicing Agreement as if such agreement was still in full
force and effect with respect to the Mortgage
Loan and (y) the actual servicing of the Mortgage Loan may be performed
by any nationally recognized commercial mortgage loan servicer appointed by
the Lead Senior Noteholder with the consent of the Note A-B
Holder and does not have to be performed
by the service providers set forth
under the Securitization Servicing Agreement.


 


(h)              
Upon the occurrence of the Lead Securitization, the Lead Senior
Noteholder shall give each other Noteholders (and the applicable servicer and trustee,
if any other Note is in a Securitization) notice of the Lead Securitization
in writing (which may be by e- mail)
prior to or promptly following the related
Securitization Date. Such notice shall contain contact information
for each of the parties to the related Securitization
Servicing Agreement and the identity
of the controlling class representative under such Securitization
Servicing Agreement. In addition, after the closing of the Lead Securitization, the
Lead Senior Noteholder shall send a copy of the Securitization Servicing Agreement
to each of the other holders.


 


(i)                
Each Non-Lead Securitization Agreement shall contain the
provisions set forth in Schedule I.


 


Section
3. Payments Prior to a Sequential Pay Event. Note
A-B and the right of the Note
A-B Holder to receive payments of interest, principal
and other amounts with respect to Note
A-B shall at all times be junior, subject and subordinate
to the Senior Notes and the right of the Senior
Noteholders to receive payments of interest, principal
and other amounts with respect to the Senior Notes as set forth
herein. If no Sequential Pay Event, as determined
by the applicable Servicer, shall have occurred and be continuing, all amounts
tendered by the Mortgage Loan Borrower or otherwise available for payment
on or with respect to or in connection
with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds
thereof, whether received in the form
of Monthly Payments, the Balloon Payment,
Liquidation Proceeds, proceeds under any guaranty, letter of credit or other
collateral or instrument securing



    	 	28	 



     


    




the Mortgage
Loan or Insurance Proceeds or Condemnation Proceeds (other than proceeds, awards
or settlements to be applied to the restoration
or repair of the Mortgaged Property or released to the Mortgage Loan
Borrower in accordance with the terms of the Mortgage Loan
Documents, to the extent permitted by the REMIC
Provisions), but excluding (x) all amounts for required reserves or
escrows required by the Mortgage Loan Documents (to the extent, in accordance
with the terms of the Mortgage Loan Documents)
to be held as reserves or escrows or received as reimbursements
on account of recoveries in respect of
Advances then due and payable or reimbursable to the Servicer under
the Servicing Agreement and (y) all amounts that are then due, payable or reimbursable
to any Servicer, Operating Advisor, Certificate
Administrator or Trustee with respect
to the Mortgage Loan pursuant to the Servicing Agreement,
shall be applied by the Lead Senior Noteholder (or its
designee) and distributed by the Lead Senior Noteholder (or the Servicer
on its behalf) for payment in the following
order of priority without duplication (and payments
shall be made at such times as are set
forth in the Servicing Agreement):


 


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


 


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


 


(c)               
third, to each Senior Noteholder up
to the amount of any unreimbursed costs
and expenses paid by such Senior Noteholder with respect to the
Mortgage Loan pursuant to this Agreement
or the Servicing Agreement, including any Recovered Costs, to be
allocated pro rata based on the amounts due to each Senior Noteholder pursuant
to this clause;


 


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


 


(e)               
fifth, to the extent the Note A-B Holder
has made any payments or advances to
cure defaults pursuant to Section 11 of this Agreement,
to reimburse the Note A-B Holder
for all such cure payments;


 


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


 


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



    	 	29	 



     


    




(h)              
eighth, to the Note A-B Holder
up to the amount of any unreimbursed costs and expenses
paid by the Note A-B Holder with respect
to the Mortgage Loan pursuant to this Agreement
or the Servicing Agreement, including any Recovered
Costs;


 


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


 


(j)                
tenth, any Prepayment Premium, to
the extent paid by the Mortgage Loan Borrower,
shall be paid to the Senior Noteholders in an amount up to its
pro rata interest therein, based on the product of the Senior
Note Percentage Interest multiplied by
the Senior Note Relative Spread;


 


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


 


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


 


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


 


As
used in clauses (a) through (m) above,
payments to the Senior Noteholders shall be made
to each of the Senior Noteholders, pro rata and pari passu, based on their
respective Principal Balance.


 


Section
4. Payments Following a Sequential Pay Event. Payments
of interest and principal shall be made
to the Noteholders in accordance with Section 3 of this Agreement;
except, if a Sequential Pay Event, as determined
by the applicable Servicer in accordance with this Agreement and the Servicing
Agreement, shall have occurred and be continuing, all amounts tendered by the
Mortgage Loan Borrower or otherwise available for
payment on or with respect to
or in connection with the Mortgage Loan or the Mortgaged Property or amounts
realized as proceeds thereof, whether
received in the form of Monthly Payments,
any proceeds from the sale or distribution
of any REO Property, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral
or instrument securing the Mortgage Loan
or Insurance Proceeds or Condemnation Proceeds (other than
proceeds, awards or settlements to be



    	 	30	 



     


    




applied to the
restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower
in accordance with the terms of the Mortgage Loan Documents,
to the extent permitted by the REMIC Provisions), but excluding
(x) all amounts for required reserves or escrows required by the Mortgage Loan Documents
to continue to be held as reserves or escrows
or received as reimbursements on account of recoveries in respect of Advances
then due and payable or reimbursable to the Servicer under
the Servicing Agreement and (y) all amounts that are then due, payable or reimbursable
to any Servicer, Operating Advisor, Certificate
Administrator or Trustee with respect to the Mortgage
Loan pursuant to the Servicing Agreement with respect to the
Mortgage Loan, shall be distributed by the Servicer in the following order of priority without
duplication (and payments shall be made
at such times as are set forth in the
Servicing Agreement):


 


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


 


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


 


(c)               
third, to each Senior Noteholder up
to the amount of any unreimbursed costs
and expenses paid by such Senior Noteholder with respect to the
Mortgage Loan pursuant to this Agreement
or the Servicing Agreement, including any Recovered Costs, to be
allocated pro rata based on the amounts due to each Senior Noteholder pursuant
to this clause;


 


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


 


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


 


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


 


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


 


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



    	 	31	 



     


    




(i)                
ninth, to the Note A-B Holder
up to the amount of any unreimbursed costs and
expenses paid by the Note A-B Holder with respect
to the Mortgage Loan pursuant to this Agreement or the Servicing Agreement,
including any Recovered Costs;


 


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


 


(k)              
eleventh, any Prepayment Premium, to
the extent paid by the Mortgage Loan Borrower, shall be paid to the Senior
Noteholders in an amount up to its pro rata interest
therein, based on the product of the Senior Note Percentage
Interest multiplied by the Senior Note Relative Spread;


 


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


 


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


 


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


 


As used
in clauses (a) through (n) above, payments to
the Senior Noteholders shall be made to
each of the Senior Noteholders, pro rata and pari
passu, based on their respective Principal Balance.


 


Section 5.Administration
of the Mortgage Loan.


 


(a)               
Subject to this Agreement (including, without limitation,
Section 5(f) below) and the Servicing Agreement, the Lead
Senior Noteholder (or the Servicer
acting on behalf of the Lead Senior Noteholder)
shall have the sole and exclusive authority with respect to the administration
of, and exercise of rights and remedies
with respect to, the Mortgage Loan, including,
without limitation, the sole authority to modify
or waive any of the terms of the
Mortgage Loan Documents or consent to any action or failure
to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan
Documents, call or waive any Event
of Default, accelerate the Mortgage Loan or institute any foreclosure
action or other remedy and the other
Noteholders shall not have any voting, consent or other rights whatsoever with respect to



    	 	32	 



     


    




the Lead Senior
Noteholder’s administration of, or exercise of its rights and remedies
with respect to, the Mortgage Loan. Subject to this Agreement
and the Servicing Agreement (including, without limitation,
Section 5(f) below), each of the Non-Lead Senior Noteholders and the Note A-B
Holder agree that it shall have no right to, and hereby presently and irrevocably
assigns and conveys to the Lead Senior Noteholder (or the Servicer
acting on behalf of the Lead Senior Noteholder) the rights, if
any, that the other Noteholders have to, (i) call or cause the Lead Senior Noteholder
to call an Event of Default under the Mortgage
Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the
Mortgage Loan Borrower, including, without limitation, filing or causing the Lead
Senior Noteholder to file any bankruptcy
petition against the Mortgage Loan Borrower.
The Lead Senior Noteholder (or the Servicer
acting on behalf of the Lead Senior Noteholder)
shall not have any fiduciary duty to any other Noteholder in connection with
the administration of the Mortgage Loan (but the foregoing shall not relieve the
Lead Senior Noteholder from the obligation to make
any disbursement of funds as set
forth herein).


 


(b)              
The administration of the Mortgage Loan shall be governed by this
Agreement and the Servicing Agreement.
Each Noteholder agrees to be bound by the terms of the Servicing Agreement
and this Agreement. Servicing of the Mortgage
Loan shall be carried out by the Master Servicer and, if the Mortgage Loan
is a Specially Serviced Mortgage Loan by the Special Servicer, in each case
pursuant to the Servicing Agreement and this
Agreement. Notwithstanding anything to the contrary contained herein,
in accordance with the Servicing Agreement,
the Lead Senior Noteholder shall cause
the Master Servicer and the Special Servicer
to service and administer the
Mortgage Loan in accordance with the Servicing
Standard, taking into account the interests of each of the Noteholders (it
being understood that the interests of the Note A-B
Holder is a junior Note interest, subject to the
terms and conditions of this Agreement), and so long as each Noteholder is
not the Mortgage Loan Borrower or a Mortgage Loan
Borrower Related Party, it shall be deemed a third
party beneficiary of such provisions of the Servicing Agreement.
The foregoing provisions of this Section 5(b) shall not limit
or modify the rights of the Controlling
Noteholder and/or the Controlling Noteholder Representative to exercise their
respective rights specifically set forth under this Agreement.


 


(c)               
Notwithstanding anything to the contrary contained herein, but subject to the terms and
conditions of the Servicing Agreement and
this Agreement (including, without limitation,
Section 5(f) below), if the Lead Senior
Noteholder in connection with a Workout of the Mortgage Loan
modifies the terms thereof such that (i) the unpaid principal balance of the
Mortgage Loan is decreased, (ii) the Interest
Rate or scheduled amortization payments on the Mortgage Loan
are reduced, (iii) payments of
interest or principal on the Mortgage
Loan are waived, reduced or deferred or (iv)
any other adjustment (other than an increase in the Interest Rate or increase
in scheduled amortization payments) is made
to any of the terms of the Mortgage Loan
(other than an extension of the Mortgage Loan maturity
date), all payments to the Senior Noteholders
pursuant to Section 3 and Section 4, as applicable, shall be made
as though such Workout did not occur, with
the payment terms of the Senior
Notes remaining the same as they are
on the date hereof, Note A-B shall bear
the full economic effect of all waivers, reductions or deferrals of amounts
due on the Mortgage Loan attributable to such Workout (up to the amount otherwise
due on Note A-B). Subject to the Servicing Agreement
and this Agreement (including without limitation
Section 5(f) below), in the case of any modification or amendment
described above, the Lead Senior Noteholder will have the sole
authority and ability



    	 	33	 



     


    




to revise the payment
provisions set forth in Section 3 and Section 4 above in a manner
that reflects the subordination of Note A-B to the Senior
Notes with respect to the loss that is the result of such amendment or modification,
including: (i) the ability to increase the Senior Note
Percentage Interest and to reduce the Note A-B
Percentage Interest in a manner that reflects a loss in principal as a result
of such amendment or modification and (ii) the
ability to change the Senior Note Rate
and the Note A-B Rate, as applicable, in order to reflect
a reduction in the Interest Rate
of the Mortgage Loan but shall not be
permitted to change the order of the clauses
set forth in Sections 3 and 4 hereof.
Notwithstanding the foregoing, if any Workout, modification or amendment
of the Mortgage Loan extends the original maturity date of the
Mortgage Loan, for purposes of this paragraph,
the Balloon Payment will be deemed not to be
due on the original maturity date of the
Mortgage Loan but will be deemed
due on the extended maturity date of the Mortgage Loan.


 


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


 


(e)               
For so long as any Senior Note or Note A-B
is included as an asset of a REMIC, any provision of this Agreement
to the contrary notwithstanding: (i) the Mortgage Loan shall be administered
such that the Senior Notes or
Note A-B, as applicable, shall each qualify
at all times as (or as interests
in) a “qualified mortgage” within the
meaning of Section 860G(a)(3) of the Code,
(ii) any real property (and related personal property) acquired by or on behalf
of the Lead Senior Noteholder pursuant to
a foreclosure, exercise of a power of
sale or delivery of a deed in lieu of foreclosure
of the Mortgage or lien on such property following a default on the Mortgage
Loan shall be administered so that the
interests of the Noteholders therein shall at all
times qualify as “foreclosure property” within the meaning of Section
860G(a)(8) of the Code and (iii) no Servicer may
modify, waive or amend any provision of the Mortgage Loan,
consent to or withhold consent from any action of the Mortgage Loan Borrower,
or exercise or refrain from exercising any powers or rights which the Noteholders
may have under the Mortgage Loan Documents, if any such action would constitute
a “significant modification” of the Mortgage Loan,
within the meaning of Section 1.860G
2(b) of the regulations of the United States Department of the Treasury,
more than three months after the earliest
startup day of any REMIC which includes a Senior Note (or any portion thereof).
The Noteholders agree that the provisions
of this Section 5(e) shall be effected by compliance
by the Lead Senior Noteholder or its assignees
with this Agreement or the Servicing Agreement or any other agreement
which governs the administration of the Mortgage
Loan or the Lead Senior Noteholder interests therein. All
costs and expenses of compliance with this Section 5(e), to the extent that
such costs and expenses relate to administration
of a REMIC or to any determination
respecting the amount, payment or avoidance of any tax under the REMIC
Provisions or the actual payment
of any REMIC tax or expense, shall be borne by the
applicable Senior Noteholder or Note A-B Holder without reimbursement under
Sections 3 or 4 hereof.


 


(f)               
If any consent, modification, amendment or waiver
under or other action in respect of the Mortgage Loan
or the Mortgage Loan Documents (whether or not a Servicing
Transfer Event has occurred and
is continuing) that would constitute
a Major Decision has been requested or proposed, at least ten (10) Business
Days prior to taking action with respect to such
Major Decision (or making a determination
not to take action with respect to such Major



    	 	34	 



     


    




Decision), the Lead
Senior Noteholder (or Servicer acting on its
behalf) shall request the written consent of the
Controlling Noteholder (or its Controlling Noteholder Representative) before
implementing a decision with respect to such
Major Decision.


 


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


 


The
Controlling Noteholder (or its Controlling Noteholder Representative)
acknowledges that, if the “retaining sponsor” in the Lead Securitization
has sold an “eligible horizontal interest” to a “third
party purchaser” in accordance with Section 244.7 of the Credit Risk
Retention Rule, then following the occurrence
of an “Operating Advisor Consultation Event” (or similar
term) under the Servicing Agreement the Operating Advisor
may have the right to consult with the Special Servicer
with respect to Major Decisions.


 


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


 


Notwithstanding
the foregoing, the Lead Senior Noteholder (or Servicer
acting on its behalf) shall not
follow any advice, direction, objection or consultation provided by the Controlling
Noteholder (or its Controlling Noteholder Representative)
that would require or cause the Lead Senior Noteholder
(or Servicer acting on its behalf) to violate
any applicable law, including the REMIC Provisions, be
inconsistent with the Servicing Standard, require or cause
the Lead Senior Noteholder (or Servicer acting on its behalf)
to violate provisions of this Agreement or the Servicing Agreement,
require or cause the Lead Senior Noteholder (or Servicer acting on its behalf)
to violate the terms of the Mortgage
Loan, or materially expand the scope of the Lead Senior
Noteholder (or Servicer acting on its behalf) responsibilities
under this Agreement.


 


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


 


(h)              
(i) The Note A-B Holder, if it is determined
at any time of determination to no longer
be the Controlling Noteholder (the “Appraised-Out Holder”)
as a result of the application
of an Appraisal Reduction Amount, shall have the
right, at its sole expense, within



    	 	35	 



     


    




fifteen
(15) days of receipt of notice of the Control Appraisal Period,
to require the Special Servicer to order a second Appraisal with respect
to the Mortgage Loan. The Special Servicer
shall use its reasonable efforts
consistent with the Servicing Standard
to ensure that such second Appraisal is delivered within thirty (30) days from
receipt of the Appraised-Out Holder’s written request and shall ensure
that such Appraisal is prepared on an
“as-is” basis by an MAI appraiser
(provided that such MAI appraiser may not be the same
MAI appraiser that provided the Appraisal
in respect of which the Appraised-Out Holder is requesting
the Special Servicer to obtain an additional
Appraisal).


 


(ii)
Upon receipt of any supplemental Appraisal
pursuant to clause (i) above, the Special
Servicer shall determine, in accordance
with the Servicing Standard, whether, based on its assessment of such supplemental
Appraisal, any recalculation of the Appraisal Reduction Amount
is warranted, and if so warranted, the Special Servicer shall recalculate
the Appraisal Reduction Amount based on such supplemental
Appraisal and any information received from
the Master Servicer. If required by such
recalculation, the Appraised-Out Holder shall be reinstated as the
Controlling Noteholder and, if applicable, shall have its
respective Principal Balance notionally restored to the extent required by
such recalculation of the Appraisal Reduction Amount.
The Appraised-Out Holder requesting any supplemental
Appraisal pursuant to clause (i) above shall refrain from exercising
any direction, control, consent and/or similar rights of the Controlling
Noteholder until such time, if any, as
the Appraised-Out Holder is reinstated as the
Controlling Noteholder (such period beginning upon receipt by the Special Servicer
of any request to obtain a supplemental Appraisal pursuant to clause (i)
above to but excluding the date on which either (A) the Special Servicer determines
that no recalculation of the Appraisal Reduction Amount
is warranted or (B) the Special Servicer recalculates the Appraisal
Reduction Amount based on the supplemental Appraisal, the “Appraisal
Review Period”). The rights
of the Controlling Noteholder during each Appraisal
Review Period shall be exercised by the Note A-1 Holder.


 


(i)                 The
Note A-B Holder (if Note A-B is no longer an asset
of the Lead Securitization) shall be entitled
to avoid a Control Appraisal Period caused
by application of an Appraisal Reduction Amount upon satisfaction of the following
(which must be completed within thirty
(30) days of the receipt of a third party Appraisal that indicates such Control
Appraisal Period has occurred): (i)
the Note A-B Holder shall have delivered
as a supplement to the appraised
value of the Mortgaged Property, in the amount specified in clause (ii) below,
to the Servicer, together with documentation acceptable to the Servicer
in accordance with the Servicing Standard to create and perfect
a first priority security interest in favor
of the Lead Senior Noteholder in such collateral
(a) cash collateral for the benefit of the
Senior Notes, and acceptable to, the Servicer or (b) an unconditional and irrevocable
standby letter of credit for the benefit of the
Senior Notes, issued by a bank or other financial institutions the long
term unsecured debt obligations of which
are at all times rated at least
“AA” by S&P, “A” by Fitch and “Aa2” by Moody’s or the short term obligations of
which are rated at 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 in an
amount which, when added to the appraised value of the Mortgaged Property as determined pursuant to the Servicing Agreement,
would cause the applicable Control Appraisal Period not to occur. If the requirements of
this paragraph are satisfied by the Note A-B Holder (a “Threshold Event Cure”),
no Control Appraisal Period caused by application of an Appraisal Reduction Amount
shall be deemed to have occurred. If a



    	 	36	 



     


    




letter of credit is furnished
as Threshold Event Collateral, the
Note A-B Holder shall be required to renew
such letter of credit not later than
thirty (30) days prior to expiration thereof or to
replace such letter of credit with a substitute
letter of credit or other Threshold
Event Collateral with an expiration date that is greater than forty-five (45) days
from the date of substitution; provided, however, that, if
a letter of credit is not renewed prior to thirty
(30) days prior to the expiration date of such letter of credit, the letter
of credit shall provide that the Servicer may (and at the direction of
the Note A-B Holder shall) draw upon such letter of credit and hold the proceeds thereof as Threshold
Event Collateral. If a letter of credit is furnished as Threshold Event Collateral, the Note
A-B Holder shall be required to replace
such letter of credit with other
Threshold Event Collateral within thirty
(30) days if the credit ratings of the issuing entity are
downgraded below the required ratings; provided, however, that, if such
Threshold Event Collateral is not so replaced, the Servicer shall draw upon such
letter of credit and hold the proceeds thereof as Threshold
Event Collateral. The Threshold Event Cure
shall continue until (i) the appraised value of the Mortgaged Property plus the value of the Threshold Event
Collateral would not be sufficient to prevent a Control
Appraisal Period from occurring; or (ii) final liquidation of the Mortgage
Loan or REO Property. If the
appraised value of the Mortgaged Property, upon any redetermination thereof,
is sufficient to avoid the occurrence of a Control Appraisal Period without taking
into consideration any, or some
portion of, Threshold Event Collateral previously delivered by such Noteholder, any or
such portion of Threshold Event Collateral held by the Servicer shall
promptly be returned to the Note A-B
Holder (at its sole expense). Upon final
liquidation or repayment of the Mortgage
Loan or REO Property with respect to the Mortgage Loan, such Threshold
Event Collateral shall be available to reimburse each Noteholder
for any realized loss pursuant to the priorities
provided in Section 3 or 4, as applicable,
with respect to the Mortgage Loan
after application of the net proceeds of liquidation,
not in excess of each Principal Balance
of the Notes, as the case may be,
plus accrued and unpaid interest thereon at the
applicable interest rate and all other Additional Servicing
Expenses reimbursable under this Agreement and under the Servicing Agreement
and any Threshold Event Collateral remaining after such reimbursement
and payments shall be returned to the Note
A-B Holder. The entire amount of Threshold
Event Collateral, without a haircut
or other reduction, shall be considered in determining the sufficiency of
such Threshold Event Collateral to avoid
a Control Appraisal Period.


 


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


 


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


 


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


 


(A)            
the Special Servicer has delivered to
the Note A-B Holder: (a) at least fifteen
(15) Business Days’ prior written
notice of any decision to



    	 	37	 



     


    




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


 


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



 


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


 


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


 


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


 


(F)              
each Note A-B Holder shall be permitted to submit
an offer at any sale of the Mortgage Loan
unless such Person is the Mortgage
Loan Borrower or a Mortgage Loan Borrower Related Party.


 


The Note
A-B Holder hereby appoints the Lead Noteholder (or the Servicer acting on its behalf)
as its agent, and grants to the Lead Noteholder an irrevocable
power of attorney coupled with an interest,
and its proxy, for the purpose of soliciting and accepting offers for and consummating
the sale of Note A-B pursuant to this Section 5(l).
The Note A-B Holder further agrees that, upon the request of the Lead Noteholder,
it shall execute and deliver to or at the direction
of the Lead Noteholder (or the Servicer acting on its behalf)
such powers of attorney or other instruments as the Lead
Noteholder may reasonably request to better assure and evidence the foregoing
appointment and grant, in each case promptly
following request, and shall deliver



    	 	38	 



     


    




originals of Note
A-B, endorsed in blank, to or at the direction
of the Lead Noteholder (or the Servicer acting on its behalf) in
connection with the consummation of any such sale.


 


In addition,
if, upon the Mortgage Loan becoming a Defaulted Loan,
the Lead Senior Noteholder (or the Special
Servicer acting on its behalf) determines to sell the
Defaulted Loan or the Lead Senior
Note, it will be required to sell
each Non-Lead Senior Note together with the Lead Senior Note.
Any such sale of a Non-Lead Note shall require the written
consent of each Non-Controlling Senior Noteholder
(provided that such consent is not required if such Non-Controlling
Senior Noteholder is the Mortgage Loan Borrower
or a Mortgage Loan Borrower Related Party)
unless the Special Servicer has delivered to each Non-Controlling
Senior Noteholder: (a) at least
fifteen (15) Business Days’ prior written
notice of any decision to attempt to sell the Mortgage
Loan; (b) at least ten (10) days prior
to the proposed sale date, a copy of each bid package (together with any material
amendments to such bid packages) received by the Special Servicer in connection
with any such proposed sale, (c) at least ten (10) days prior to
the proposed sale date, a copy of the most recent Appraisal
for the Mortgage Loan, and any documents
in the servicing file reasonably requested by each Non-Controlling Senior
Noteholder that are material to the
sale price of the Mortgage Loan and
(d) until the sale is completed and a reasonable period of time
(but no less time than is afforded to other offerors and the
Controlling Class Representative (as such term is defined in the Servicing Agreement))
prior to the proposed sale date, all information and other documents
being provided to other offerors and all leases or other documents that are
approved by any Servicer in connection with the proposed sale. A Non-Controlling
Senior Noteholder may waive any of the
delivery or timing requirements set forth in this paragraph as to itself. Subject
to the foregoing, each of the Non- Controlling Senior Noteholders shall be
permitted to submit an offer at any
sale of the Mortgage Loan unless such Person
is the Mortgage Loan Borrower or
an agent or Affiliate of the
Mortgage Loan Borrower.


 


(m)            
The Servicing Agreement shall provide that
during the continuation of a Control
Appraisal Period, the Lead Senior Noteholder (or the Servicer
acting on its behalf) shall be required: (i) to provide
copies of any notice, information and report that it is required to provide
to the controlling class representative pursuant to the Servicing Agreement with respect
to any Major Decisions or the implementation of any recommended
actions outlined in an Asset Status
Report relating to the Mortgage Loan, to each Non-Controlling
Senior Noteholder (or its controlling class representative),
within the same time frame it is required to provide to the controlling
class representative (for this purpose,
without regard to whether such
items are actually required to be provided to the controlling class representative
in the Lead Securitization under the Servicing Agreement
due to the termination of a “Subordinate
Control Period” or termination of a “Subordinate Consultation
Period” (as such terms are defined in the Servicing Agreement)); and
(ii) to consult with each Non-Controlling Senior Noteholder
(or its controlling class representative) on a strictly
non-binding basis, to the extent having received such notices, information
and reports, such Non-Controlling Senior Noteholder
(or its controlling class representative) requests consultation
with respect to any such Major Decisions or the implementation of any recommended
actions outlined in an Asset Status
Report relating to the Mortgage Loan, and
consider alternative actions recommended by
such Non-Controlling Senior Noteholder (or its controlling class representative);
provided that after the expiration of a period of ten (10) Business
Days from the delivery to the Non-Controlling
Senior Noteholder (or its controlling class representative)
by the Lead Senior Noteholder of written
notice of a proposed



    	 	39	 



     


    




action, together with
copies of the notice, information and report
required to be provided to the controlling class representative, the Lead Senior
Noteholder (or the Servicer acting on its behalf)
shall no longer be obligated to consult with the Non-Controlling Senior Noteholder
(or its controlling class representative), whether or not the Non-Controlling
Senior Noteholder (or its controlling class representative) have responded
within such ten (10) Business Day period (unless, the Lead
Senior Noteholder (or the Servicer acting on
its behalf) proposes a new course of action that is materially
different from the action previously proposed, in which case such ten


(10)
Business Day period shall be deemed to begin anew from the date
of such proposal and delivery of all information relating thereto). Notwithstanding
the consultation rights of the Non- Controlling Senior Noteholder (or its controlling class representative)
set forth in the immediately preceding sentence, the Lead
Senior Noteholder (or Servicer acting on its behalf)
may make any Major Decision or take any action set forth in the Asset Status Report before the
expiration of the aforementioned ten (10) Business Day period if the Lead
Senior Noteholder (or Servicer acting on its behalf) determines that immediate
action with respect thereto is necessary to protect the
interests of the Noteholders. In no event shall the Lead Senior Noteholder
(or Servicer acting on its behalf) be obligated at any time to follow
or take any alternative actions recommended by a Non-Controlling
Senior Noteholder (or its controlling
class representative). In addition to the consultation rights of the Non-Controlling
Senior Noteholder (or its controlling class representatives), during the continuation
of a Control Appraisal Period the Non-Controlling
Senior Noteholder shall have the right to attend annual meetings
(either telephonically or in person, in the discretion of the Servicer) with
the Lead Senior Noteholder (or the Servicer acting on its behalf)
at the offices of the Servicer,
as applicable, upon reasonable notice and at times
reasonably acceptable to the Servicer, as applicable, in which
servicing issues related to the Mortgage Loan
are discussed.


 


(n)              
The Lead Senior Noteholder (or at any time when the Lead
Senior Note is included in a Securitization,
the Master Servicer) shall, within
thirty (30) days after receipt, provide the Note
A-B Holder with copies of each financial statement
and other report delivered to the Lead
Senior Noteholder or Master Servicer pursuant to the
terms of the Mortgage Loan Documents. Subject to the terms
of the applicable Mortgage Loan Documents, the Lead Senior
Noteholder shall also deliver copies of any other documents
relating to the Mortgage Loan, including, without limitation, property inspection
reports and standard CREFC® reports, in each case, to the
extent in the possession of the Lead Senior Noteholder. In addition, the Note A-B
Holder shall have the right from time to time
to request that the Lead Senior Noteholder
request from the Mortgage Loan Borrower (and the Lead Senior
Noteholder shall so request from the
Mortgage Loan Borrower) such other documents,
reports, estoppels and/or certifications that the Mortgage Loan
Borrower is required to deliver under the Mortgage
Loan Documents. At any time when the Lead Senior Note is included in a Securitization,
the Certificate Administrator shall also provide
access to the Certificate Administrator’s website to the Note
A-B Holder (or any prospective purchaser of Note A-B) to allow
the Note A-B Holder (or any prospective purchaser of Note A-B) to access
any financial statements and other documents
and reports relating to the Mortgage
Loan on the Certificate Administrator’s website, subject to restrictions on
information made available to Borrower
Related Parties. Any delivery required under this Section 5(n)
may be provided by giving the Note A-B Holder access to a website that contains
such information.


 


Section 6.Appointment
of the Controlling Noteholder Representative.






    	 	40	 



     


    

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


 


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






    	 	41	 



     


    

 


(c)               
If the Lead Senior Noteholder is the Controlling
Noteholder, each of the other Noteholders acknowledges and agrees all of the
aforementioned rights and obligations of the Controlling Noteholder and the
Controlling Noteholder Representative set forth in Section
5(f) and this Section 6 shall be exercisable
by the Lead Senior Noteholder (or the applicable Person specified in the Servicing
Agreement) to the extent set forth in the Servicing Agreement.


 


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


 


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



    	 	42	 



     


    




Section 8.Payment
Procedure.


 


(a)               
The Lead Senior Noteholder (or the Servicer
on its behalf), in accordance with the priorities
set forth in Section 3 or 4, as
applicable, and subject to the terms of the
Servicing Agreement, shall deposit
or cause to be deposited all payments and collections on the Mortgage Loan
allocable to the Notes to the Collection Account for
the Notes established pursuant to the Servicing
Agreement. The Lead Senior Noteholder (or the
Servicer on its behalf) shall establish a segregated sub-account for
amounts due to the Noteholders. The Lead Senior Noteholder (or the
Servicer acting on its behalf) shall deposit such amounts to the applicable
account within two (2) Business Days of receipt of properly identified
payments and collections by the Lead Senior
Noteholder (or the Servicer acting on its behalf) from or on behalf of the
Mortgage Loan Borrower.


 


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


 


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


 


(d)              
Each Noteholder agrees that if at any time it
shall receive from any sources whatsoever any
payment on account of the Mortgage Loan in
excess of its distributable share thereof, it
will promptly remit such excess to the Lead
Senior Noteholder (or the Servicer on its behalf) subject to
this Agreement and the Servicing Agreement.
The Lead Senior Noteholder (or the Servicer
on its behalf) shall have the right to offset any amounts
due hereunder from a Noteholder with respect to the Mortgage Loan
against any future payments due to such Noteholder under the Mortgage Loan,
provided, that each Noteholder’s obligations under this Section
8 are separate and distinct obligations
from one another and in no event shall
the Lead Senior Noteholder (or the Servicer
on its behalf) enforce the obligations
of one Noteholder against another Noteholder. Each
Noteholder’s obligations under this Section 8 constitute
absolute, unconditional and continuing obligations.



    	 	43	 



     


    




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


 


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


 


Each
of the Senior Noteholders acknowledges that, subject to the terms
and conditions hereof, the Note
A-B Holder may exercise, or omit to
exercise, any rights that the Note A-B
Holder may have under this Agreement
and the Servicing Agreement in a manner
that may be adverse to the interests
of the Senior Noteholders and that the Note A-B Holder shall have no liability
whatsoever to the Senior Noteholders in connection
with the Note A-B Holder’s exercise of rights or any omission by the Note A-B
Holder to exercise such rights; provided, however, that the Note
A-B Holder shall not be protected against any liability to
the Senior Noteholders that would otherwise be imposed
by reason of willful misfeasance, bad faith
or negligence.


 


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






    	 	44	 



     


    

 


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


 


Section 11.Cure Rights of the Note A-B Holder.


 


This
Section 11 shall not have any force of effect until the date,
if any, when Note A-B is no longer an asset of the Lead Securitization Trust.


 


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


 


(b)              
Notwithstanding anything to the contrary contained in Section 11(a),
the Note A-B Holder shall be limited
to six (6) cures of Monetary Defaults
in any 12 month period,



    	 	45	 



     


    




but in no event more
than twelve (12) cures of Monetary Defaults over the term of the Mortgage
Loan, and six (6) cures of Non-Monetary Defaults over the term of
the Mortgage Loan, it being understood that a Non-Monetary Default Cure Period
that may extend longer than one month
in accordance with Section 11(d) shall
be considered to be a single cure. Additional Cure Periods shall only
be permitted with the reasonable consent
of the Lead Senior Noteholder.


 


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


 


(d)              
If an Event of Default (other than a Monetary
Default) occurs and is continuing under the Mortgage Loan Documents (a “Non-Monetary
Default”), the Lead
Senior Noteholder (or the Servicer on its
behalf) shall promptly provide notice to the Note
A-B Holder and the Controlling Noteholder Representative of such failure
(the “Non-Monetary Default Notice”) and the Note A-B
Holder shall have the right, but not the obligation, to cure such Non-
Monetary Default within ten (10) days
from the later of (i) the expiration
of the cure period of the Mortgage Loan Borrower under the Mortgage Loan Documents
and (ii) receipt of the Non- Monetary Default
Notice; provided, however, if such Non-Monetary Default is susceptible
of cure but cannot reasonably be cured within such period and if curative
action was promptly commenced and is being
diligently pursued by the Note A-B Holder, the Note
A-B Holder shall be given an additional period of time
as is reasonably necessary to enable the Note A-B
Holder in the exercise of due diligence to cure such Non-Monetary Default
for so long as (i) the Note A- B Holder diligently and expeditiously proceeds to
cure such Non-Monetary Default, (ii) the Note
A-B Holder makes all cure payments that
it is permitted to make in accordance
with the terms and provisions of Section
11(a) hereof, (iii) such additional
period of time does not exceed sixty
(60) days, (iv) such Non-Monetary Default
is not caused by an Insolvency
Proceeding or during such period of time that the Note
A-B Holder has to cure a Non-Monetary Default in accordance with this Section
11(d) (the “Non-Monetary Default Cure Period”),
an Insolvency Proceeding does not occur and (v) during such Non-Monetary
Default Cure Period, there is no material adverse effect on the
Mortgage Loan Borrower or the Mortgaged Property or the value of the Mortgage
Loan as a result of such
Non-Monetary Default or the attempted
cure. So long as the Note A-B
Holder is exercising its cure rights or the Non-Monetary Default Cure Period
has not expired, such Non-Monetary Default shall not be treated as
an Event of Default by the Lead
Senior Noteholder (including for purposes of (i) the definition
of “Sequential Pay Event,” (ii)   accelerating
the Mortgage Loan, modifying, amending or waiving
any provisions of the Mortgage Loan
Documents or commencing proceedings for
foreclosure or the taking of title by deed-in-lieu
of foreclosure or other similar legal proceedings with respect
to the Mortgaged Property, or (iii) treating
the Mortgage Loan as a Specially Serviced
Mortgage Loan); provided that such limitation
shall not prevent the Lead Senior Noteholder from collecting default interest
or late charges from the Mortgage Loan Borrower.


 



    	 	46	 



     


    




 


Section 12.Purchase Rights of the Senior
Notes by the Note A-B Holder.


 


This
Section 12 shall not have any force of effect until the date,
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 Purchase Notice”),
delivered at any time an Event of Default
under the Mortgage Loan has occurred and is continuing, to purchase, in
immediately available funds, each of the Senior Notes, in whole
but not in part, at the applicable Defaulted Mortgage Loan
Purchase Price. Upon the delivery of the Noteholder
Purchase Notice to the Senior Noteholders,
the Senior Noteholders shall sell (and the Note A-B
Holder shall purchase) the Senior Notes (including, without limitation,
any Notes therein) at the applicable Defaulted Mortgage Loan
Purchase Price, on a date (the
“Defaulted Note Purchase Date”) (i) not more
than ten (10) Business Days after the written exercise by the Note A-B
Holder to purchase the Senior Notes or (ii) not more
than thirty (30) days after the written exercise by the Note A-B Holder to
purchase the Senior Notes if the Note A-B Holder
deposits 10% of the Defaulted Mortgage Loan
Purchase Price with the Senior Noteholders within ten (10)
Business Days after the written exercise
of the Note A-B Holder to purchase
the Senior Notes. The Noteholder Purchase Notice
shall contain a statement that the Note
A-B Holder’s failure to purchase the Senior
Notes on a Defaulted Note Purchase Date
will result in the termination of such Noteholder’s
right. The Note A-B Holder agrees that the sale of the Senior Notes
shall comply with all requirements
of the Servicing Agreement and that all costs and expenses
related thereto shall be paid by the Note A-B Holder. The Defaulted Mortgage
Loan Purchase Price shall be calculated by the Lead Senior Noteholder (or the Servicer
on its behalf) three (3) Business Days prior to
the Defaulted Note Purchase Date (and such calculation shall
be accompanied by a listing of
all amounts included in the Defaulted
Mortgage Loan Purchase Price and shall,
absent manifest error, be binding upon the Note A-B Holder. Concurrently with the
payment to the Senior Noteholders in immediately available funds of its respective
portion of the applicable Defaulted Mortgage
Loan Purchase Price, the Senior
Noteholders shall execute at the sole
cost and expense of the Note A-B Holder
in favor of the Note A-B Holder assignment
documentation that will assign the Senior
Notes and the Mortgage Loan Documents without recourse, representations or
warranties (except each of the Senior Noteholders
will represent and warrant that it had good and marketable
title to, was the sole owner and holder of, and had power and authority to
deliver the Mortgage Loan or Note,
as applicable, free and clear of all liens
and encumbrances). The right of the
Note A-B Holder to purchase the Senior Notes shall automatically terminate
upon a foreclosure sale, sale by power of sale or acceptance of a deed in lieu of foreclosure
with respect to the Mortgaged Property
(and the Lead Senior Noteholder shall give the Note A-B
Holder fifteen (15) days’ notice of its intent
with respect to any such action). Notwithstanding the foregoing sentence,
if title to the Mortgaged Property is transferred to
the Lead Senior Noteholder (or a designee on
its behalf) less than fifteen
(15) days after the acceleration of
the Mortgage Loan, the Lead Senior Noteholder
shall notify the Note A-B Holder of
such transfer and the Note A-B Holder
shall have a fifteen (15) day period from the date of such notice from
the Lead Senior Noteholder to deliver the Noteholder
Purchase Notice to the Senior Noteholders,
in which case the Note A-B Holder will
be obligated to purchase the Mortgaged
Property, in immediately available funds, within such fifteen (15) day period
at the applicable Defaulted Mortgage Loan Purchase Price for such Note(s).



    	 	47	 



     


    




 


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


 


The
Note A-B Holder acknowledges that the Senior
Noteholders do not owe the Note A-B Holder any fiduciary duty with respect to any
action taken under the Mortgage Loan Documents
and, except as provided herein, need not consult with the Note
A-B Holder with respect to any action taken by any Senior Noteholder in connection
with the Mortgage Loan.


 


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


 


Section
14. Representations of the Senior Noteholders.
Each of the Senior Noteholders represents and warrants
that the execution, delivery and performance of this Agreement is within its
respective corporate powers, has been duly authorized by all necessary corporate
action, and does not contravene such Senior Noteholder’s charter or any law
or contractual restriction binding upon such Senior
Noteholder, and that this Agreement
is the legal, valid and binding obligation of such
Senior Noteholder, enforceable against it in accordance
with its terms. Each of the Senior Noteholders
represents and warrants that it is duly organized,



    	 	48	 



     


    

 validly existing, in good
standing and possession of all licenses and authorizations necessary to carry
on its business. Each of the Senior Noteholders
represents and warrants that (a) this Agreement has been duly
executed and delivered by such Senior Noteholder, (b) to such Senior
Noteholder’s actual knowledge, all consents, approvals, authorizations,
orders or filings of or with any court or governmental
agency or body, if any, required for the execution, delivery and performance
of this Agreement by such Senior Noteholder have been obtained or made and


(c)   to each
of the Senior Noteholder’s actual knowledge, there is no pending action, suit
or proceeding, arbitration or governmental investigation
against such Senior Noteholder, an adverse outcome
of which would materially and adversely affect its performance
under this Agreement.


 


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


 


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


 


Section
17. Not a Security. None of the Notes shall
be deemed to be a security within
the meaning of the Securities Act of 1933 or the Securities Exchange Act of 1934.


 


Section
18. Other Business Activities of the Noteholders.
Each Noteholder acknowledges that each of the other Noteholders or its
Affiliates may make loans or otherwise extend credit to, and generally engage in any kind of business with, any Affiliate
of the Mortgage


 



    	 	49	 



     


    

 





Loan Borrower
Related Party, and receive payments on such other loans or extensions
of credit to Mortgage Loan Borrower Related
Parties and otherwise act with respect thereto freely and without accountability
in the same manner as if this Agreement and
the transactions contemplated hereby were not
in effect.


 


Section 19.Sale of the Notes.


 


(a)               
The Note A-B Holder agrees that it will not
Transfer all or any portion of Note A-B except that the
Note A-B Holder shall have the right to Transfer its respective Note, or any
portion thereof, without the consent
of the Senior Noteholders or any other Person
(i) to a Qualified Transferee, or (ii) to an entity that is not a Qualified
Transferee; provided that:


 


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


 


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


 


If Note
A-B is held by more than one Note
A-B Holder at any time, the holders of a majority
of the Note A-B Principal Balance shall immediately
appoint a representative to exercise all rights of Note
A-B hereunder.


 


Notwithstanding
the foregoing, without the Senior Noteholders’ prior
consent, which may be withheld
in their sole discretion, the Note A-B Holder shall not Transfer all or any
portion of Note A-B to the Mortgage Loan Borrower
or a Mortgage Loan Borrower Related Party
and any such Transfer shall be absolutely null and void and
shall vest no rights in the purported transferee. The Note A-B Holder agrees
that it will pay the reasonable documented expenses
of the Senior Noteholders (including all expenses of the Master Servicer
and the Special Servicer) in connection
with any such Transfer by the Note A-B
Holder. The Agent shall provide two (2)
Business Days prior written notice to
each Rating Agency of any Transfer of
Note A-B.


 


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


 


(c)               
All Transfers of Note A-B, other than transfer
of a participation interest in Note A-B
or a transfer of Note A-B to a Securitization, under Sections
19(a) and (b) shall be made upon written notice to the Senior
Noteholders not later than five (5) days after the date of such Transfer,
and each transferee shall (i) execute an assignment
and assumption agreement whereby such
transferee represents that it is a Qualified Transferee
(except in the case of a transfer
of less than 49% of Note A-B) or that
the applicable consent and/or confirmation
described in Section 19(a) has been obtained and assumes
all or a ratable portion, as the case may be, of the obligations of the
Note A-B Holder hereunder with respect to Note A-B from and






    	 	50	 



     


    

 


after the date of such
assignment (or, in the case, of a pledge, collateral
assignment or other encumbrance made
in accordance with Section 19(g) by the
Note A-B Holder of Note A-B solely as
security for a loan to the Note A-B Holder made
by a third-party lender whereby the Note A-B Holder remains
fully liable under this Agreement, on or
before the date on which such lender succeeds to the rights of the Note A-B Holder
by foreclosure or otherwise, such third- party lender
executes an agreement that such lender
shall be bound by the terms and
provisions of this Agreement and the obligations
of the Note A-B Holder hereunder) and (ii) agree in writing to be bound by
the Servicing Agreement.


 


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


 


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


 


(f)               
Each of the Senior Noteholders shall have the right to Transfer all or any
portion of its Senior Note without the prior consent of any Noteholder
except that, no Senior Noteholder may Transfer all or any portion of its Senior Note to
the Mortgage Loan Borrower or a Mortgage Loan
Borrower Related Party and any such Transfer to the Mortgage Loan
Borrower



    	 	51	 



     


    

 





or a Mortgage Loan Borrower
Related Party shall be absolutely null and void and shall vest no rights in the purported
transferee.


 


(g)              
Notwithstanding anything to the contrary contained herein, each Noteholder may
pledge or transfer (a “Pledge”) its Note
to any entity (other than the
Mortgage Loan Borrower or any Affiliate thereof)
that has either extended a credit
or repurchase facility to, or is involved
in the facilitation of a securities issuance
program for, such Noteholder and that, in each case, is
either a Qualified Transferee or a financial
institution whose long-term unsecured debt is rated at least “A”
(or the equivalent) or better by each Rating Agency (a “Note Pledgee”),
or to a Person with respect to which a Rating Agency Confirmation has been obtained,
on terms and conditions set forth
in this Section 19(g), it being further
agreed that a financing provided by a Note Pledgee to a Noteholder
or any Affiliate that Controls such Noteholder that is
secured by such Noteholder’s interest in its respective
Note and is structured as a repurchase arrangement,
shall qualify as a “Pledge” hereunder;
provided that a Note Pledgee that is not a Qualified
Transferee may not take title to the pledged Note without (a) prior to Securitization,
the consent of each other 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 the name
and address of the applicable Note
Pledgee), each of the other Noteholders agrees to acknowledge receipt of such notice
and thereafter agrees: (i)   to give such
Note Pledgee written notice of any
default by the pledging Noteholder in respect of its obligations under this Agreement
of which default such Noteholder
has actual knowledge and which shall be given simultaneously
with the giving of such notice to the
pledging Noteholder; (ii) to allow such Note
Pledgee a period of ten (10) Business Days to cure a default by the pledging Noteholders in respect of its obligations
to the other Noteholders hereunder, but such Note
Pledgee shall not be obligated to cure any such default;
(iii) that no amendment, modification, waiver
or termination of this Agreement
shall be effective against such Note Pledgee
without the written consent of such Note Pledgee, which consent shall not be unreasonably withheld, conditioned or
delayed and which consent shall be deemed to be given if Note Pledgee
shall fail to respond to any request for consent to
any such amendment, modification, waiver
or termination within 10 Business Days
after request thereof; (iv) that such other Noteholders
shall accept any cure by such Note
Pledgee of any default of the pledging Noteholder which such pledging Noteholder
has the right to effect hereunder, as if such cure were made by such pledging
Noteholder; (v) that such other Noteholder or any Servicer shall deliver to
Note Pledgee such estoppel certificate(s)
as Note Pledgee shall reasonably request; provided that any such certificate(s)
shall be in a form reasonably satisfactory to such other Noteholder; and (vi)
that, upon written notice (a “Redirection Notice”) to the other Noteholders
and any Servicer by such Note Pledgee that the pledging Noteholder
is in default, beyond any applicable cure
periods with respect to the pledging Noteholder’s obligations to such
Note Pledgee pursuant to the applicable
credit agreement or other agreement
relating to the Pledge between the pledging Noteholder
and such Note Pledgee (which
notice need not be joined in or confirmed by the pledging
Noteholder), and until such Redirection
Notice is withdrawn or rescinded
by such Note Pledgee, Note Pledgee (or
at any time that the pledging Noteholder otherwise
directs that such payments be made to Note Pledgee pursuant to a separate
notice) shall be entitled to receive any payments that any Noteholder or Servicer
would otherwise be obligated to pay to the pledging Noteholder from time
to time pursuant to this Agreement or any Servicing
Agreement. Any pledging Noteholder hereby unconditionally and absolutely releases
the other Noteholders and any Servicer from any liability
to the pledging Noteholder on account



    	 	52	 



     


    

 of any Noteholders’ or Servicer’s
compliance with any Redirection Notice believed by any Servicer or such
other Noteholder in good faith to have been delivered by a Note Pledgee.
Note Pledgee shall be permitted
to exercise fully its rights and remedies
against the pledging Noteholder (and accept an assignment in lieu of foreclosure
as to such collateral), in accordance
with applicable law, the pledge agreement, repurchase agreement or similar
agreement between the pledging Noteholder and the Note Pledgee and
this Agreement. In such event,
or if the pledging Noteholder otherwise assigns its interests to the Note Pledgee,
the other Noteholders and any Servicer shall recognize such Note Pledgee
(and any transferee other than the Mortgage Loan Borrower or
any Affiliate thereof that is also a Qualified
Transferee at any foreclosure or similar sale
held by such Note Pledgee or any transfer in lieu of foreclosure), and
its successor and assigns, as the successor to the pledging Noteholder’s rights,
remedies and obligations under this Agreement, and any such Note Pledgee
or Qualified Transferee shall assume in writing the obligations of the pledging
Noteholder hereunder accruing from and after such Transfer
(i.e., realization upon the collateral by such Note Pledgee) and agrees to
be bound by the terms and provisions of this Agreement.
The rights of a Note Pledgee under this Section 19(g)
shall remain effective as to any Noteholder (and any Servicer) unless and until
such Note Pledgee shall have notified any such Noteholder
(and any Servicer, as applicable) in writing that its interest
in the pledged Note has terminated.


 


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


 


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


 


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


 


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


 


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


 


(v)               
Unless the Conduit is in fact then a Qualified Transferee, the Conduit
will not, without obtaining the consent
of each other Noteholder and Rating Agency
Confirmation (in the case of Note A-B),
have any greater right to acquire the
interests in the Note pledged by such Noteholder,
by foreclosure or otherwise, than would any other



    	 	53	 



     


    




purchaser that
is not a Qualified Transferee
at a foreclosure sale conducted by a Note Pledgee.


 


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


 


Section
21. Registration of the Notes. The
Agent shall keep or cause to be kept at the Agent Office books (the “Note Register”) for
the registration and transfer of the
Notes. The Agent shall serve as the initial Note registrar and the Agent
hereby accepts such appointment. The
names and addresses of the holders of the Notes, the principal amount (and
stated interest) of the Notes owing to each Noteholder and the names
and addresses of any transferee of any Note of which the
Agent has received notice, in the form of a copy
of the assignment and assumption agreement referred to in Section 19(c),
shall be registered in the Note Register. The Person in whose
name a Note is so registered shall
be deemed and treated as the sole owner
and holder thereof for all purposes of this Agreement,
except in the case of the Initial Noteholders who
may hold their Notes through a nominee.
Upon request of a Noteholder, the Agent shall provide such party with the names
and addresses of the Noteholders. To the extent another party is appointed as Agent
hereunder, each Noteholder hereby designates such person as its agent under this Section 21 solely for purposes of maintaining
the Note Register.


 


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


 


Section
23. No Pledge. This Agreement
shall not be deemed to represent a pledge of any interest in
any Mortgage Loan by any of the Noteholders.
Except as otherwise provided in this Agreement and the Servicing Agreement,
none of the Noteholders, other than the Lead Note Holder, shall have a direct ownership
interest in any property taken as security for any Mortgage Loan,
provided, however, that if any such property or the proceeds
of any sale,



    	 	54	 



     


    




lease or other
disposition thereof shall be received, then each of such Noteholders shall be entitled
to receive its share of such application
in accordance with the terms of this
Agreement and/or the Servicing Agreement.


 


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


 


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


 


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


 


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


 


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


 


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


 


Section
26. Modifications; Amendment. This Agreement shall not be modified,
cancelled or terminated except by an instrument
in writing signed by the parties hereto (other than as set forth
in Section 5(c)) and, after Securitization, any modification
that materially affects the rights of the Senior
Noteholders or the Note A-B Holder shall
be subject to Rating



    	 	55	 



     


    




Agency Confirmation,
except that no Rating Agency Confirmation shall be required
in connection with a modification to cure
any ambiguity or to correct or
supplement any provision herein that may be
defective or inconsistent with any other provisions
herein or with the Servicing Agreement.


 


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


 


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


 


Section
29. Captions. The titles and headings of the
paragraphs of this Agreement have been inserted for convenience of reference
only and are not intended to summarize or otherwise describe the subject matter
of the paragraphs and shall not be
given any consideration in the construction of this Agreement.


 


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


 


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


 


Section 32.Withholding
Taxes.


 


(a)               
If the Lead Senior Noteholder or the Mortgage Loan Borrower
shall be required by law to deduct
and withhold Taxes from interest, fees or other amounts
payable to a Noteholder with respect to the Mortgage Loan as a result of such
Noteholder constituting a Non- Exempt Person, the Lead Senior
Noteholder in its capacity as servicer,
shall be entitled to do so with respect to such Noteholders’ interest
in such payment (all withheld amounts being deemed
paid to such Noteholder), provided that the Lead
Senior Noteholder shall furnish such Noteholder with a statement
setting forth the amount of Taxes withheld, the applicable rate and other
information which may reasonably be requested for
purposes of assisting such Noteholder



    	 	56	 



     


    




to seek any allowable
credits or deductions for the Taxes
so withheld in each jurisdiction
in which such Noteholder is subject to tax.


 


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


 


(c)                Contemporaneously
with the execution of this Agreement and from time
to time as reasonably requested by
the Lead Senior Noteholder or Servicer during the term of this Agreement,
each Non-Lead Senior Noteholder and the Note A-B Holder shall deliver
to the Lead Senior Noteholder or Servicer, as applicable, evidence satisfactory to
the Lead Senior Noteholder substantiating whether such Noteholder is a Non-Exempt
Person and whether the Lead Senior
Noteholder is obligated under applicable law to withhold Taxes on sums
paid to it with respect to the Mortgage Loan or otherwise under this Agreement.
Without limiting the effect of the foregoing, (i) if a Non-Lead
Senior Noteholder or the Note A-B Holder is created
or organized under the laws of the United States, any state thereof or the District
of Columbia, it shall satisfy the
requirements of the preceding sentence by furnishing to the Lead Senior Noteholder an Internal Revenue Service
Form W-9 and (ii) if a Non-Lead Senior Noteholder or the Note A-B
Holder is not created or organized under the laws of the United States,
any state thereof or the District of Columbia, and if the payment of
interest or other amounts by the Mortgage Loan
Borrower is treated for United States income
tax purposes as derived in whole or
part from sources within the United
States, such Noteholder shall satisfy the requirements
of the preceding sentence by furnishing to the Lead Senior Noteholder Internal Revenue
Service Form W-8ECI, Form W-8IMY
(with appropriate attachments) or Form W-8BEN
or Form W-8BEN-E, as applicable, or successor forms,
as may be required from time to time,
duly executed by such Noteholder. The Lead Senior Noteholder shall not be obligated to make
any payment hereunder to any Non-Lead
Senior Noteholder or the Note A-B Holder in respect of its Note
or otherwise until such Noteholder shall have furnished to the
Lead Senior Noteholder the requested forms,
certificates, statements or documents.


 


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



    	 	57	 



     


    




Loan Documents
(other than the Notes not included in such securitization)
shall be held by the custodian for the Lead Securitization.


 


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


 


All
notices and reports (including, without limitation,
Asset Status Reports) required to
be delivered hereunder by the Lead Senior
Noteholder (or the Servicer on
its behalf) to the Controlling
Noteholder (or its Controlling Noteholder Representative),
or by the Controlling Noteholder (or its Controlling
Noteholder Representative) to the Lead Senior Noteholder (or the Servicer
on its behalf), shall also be delivered
(or reports made available by access to a website)
by the applicable party to the
other Noteholders.


 


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


 


Section 36.Certain
Matters Affecting the Agent.


 


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


 


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


 


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


 


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


 


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



    	 	58	 



     


    




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


 


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


 


The
Agent may resign at any time upon ten
(10) days’ prior notice, so long as
a successor Agent, reasonably satisfactory to the Noteholders, has agreed to be bound by this Agreement
and perform the duties of the Agent hereunder. Natixis, as Initial
Agent, may transfer its rights and obligations to the
Servicer, as successor Agent, at any time without the consent of any
Noteholder. Natixis, as Initial Agent,
shall promptly and diligently attempt
to cause such Servicer to act as successor Agent, and, if such Servicer declines to
act in such capacity, shall promptly and diligently
attempt to cause a similar servicer to act as
successor Agent. The termination or resignation
of such Servicer, as Servicer under the
Servicing Agreement, shall be deemed a termination
or resignation of such Servicer as Agent
under this Agreement.


 


Upon
a Securitization of the Lead Senior Note, the Certificate Administrator
shall automatically become and be the Agent.


 


Section
38. Servicing of the Loan. Pursuant
to the Servicing Agreement, the Master Servicer
(whose identity may change from time
to time as provided in the Servicing
Agreement) will be appointed as the servicer of the Mortgage Loan
and the Special Servicer (whose identity
may change from time to time
as provided in the Servicing Agreement) will be appointed as
the special servicer of the Mortgage Loan,
and the parties agree that the Master Servicer and
Special Servicer will service the Mortgage Loan on behalf of each Noteholder
pursuant to the Servicing Agreement and subject to the terms
hereof. The Senior Noteholders shall not enter into any amendment
to any Servicing Agreement that would materially and adversely affect
the rights or interests of the other Noteholders without obtaining such other Noteholders’
prior written consent which shall not be unreasonably withheld, conditioned
or delayed.


 


Section
39. Conflict. To the extent of
any inconsistency between the Servicing Agreement, on one hand,
and this Agreement (without regard to any
references in this Agreement to the effect that
a given defined term shall have the meaning
of such defined term or an analogous term in the Servicing Agreement), on
the other, this Agreement shall control.


 


Section
40. Resizing. Notwithstanding any other
provision of this Agreement, for so long as Natixis
or an Affiliate of Natixis (collectively,
an “Original Entity”)
is the owner of any Note (the “Owned Note”),
such Original Entity shall have the right, subject to the terms of the Mortgage
Loan Documents, to cause the Mortgage Loan
Borrower to execute amended and restated notes or additional
notes (in either case, “New
Notes”) reallocating the principal
and/or interest of the Owned Note to
such New Notes; or severing the Owned Note
into one or more



    	 	59	 



     


    

 further
“component” notes in the aggregate principal amount equal to the
then outstanding principal balance of the Owned Note provided that (i) the aggregate
principal balance of all outstanding New Notes following such amendments is no greater
than the aggregate principal of the Owned Note prior to such amendments, (ii) immediately
after giving effect to such
amendment, the weighted average interest
rate of the Notes will be equal to the initial weighted average interest rate of the
Notes immediately prior to such amendment, (iii) such reallocated or component
notes shall be automatically subject to the terms
of this Agreement, and (iv) the Original Entity
holding the New Notes shall notify the Senior Noteholders, the Master Servicer,
the Special Servicer, the Certificate Administrator and the Trustee in
writing of such modified allocations and principal amounts. A New
Note may be structured as a pari
passu or senior/subordinate note. If the Lead Senior Noteholder so requests,
the Original Entity holding the New Notes (and any subsequent holder of such
Notes) shall execute a confirmation of the
continuing applicability of this Agreement to the New
Notes, as so modified. Except for the foregoing reallocation and for modifications
pursuant to the Servicing Agreement (as discussed in Section
5), no Note may be modified or
amended without the consent of its holder and the consent of the
related Noteholder. In connection with the foregoing
(provided the conditions set forth in (i) through (iv), as certified by the
Original Entity, on which certification the Master Servicer can rely), the
Master Servicer is hereby authorized and directed to
execute amendments to the Mortgage Loan Documents
and this Agreement on behalf of any or all of the
Noteholders, as applicable, solely for the purpose of reflecting such reallocation
of principal and/or interest. If a New Note is created
out of the Lead Senior Note, the Original
Entity shall designate which Note will
eligible for “control” during a Control Appraisal Period
and the holders of all other New Notes will be treated as “Non-Controlling
Senior Noteholders.” If a New
Note is created out of the Lead Note,
the Lead Senior Noteholder shall designate which Note will
be in the Lead Securitization.


 


[SIGNATURE PAGE FOLLOWS]



    	 	60	 



     


    




 


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)



    	 		 



     


    




 








EXHIBIT
A


 


MORTGAGE
LOAN SCHEDULE


 


 


	A.	Description
of Mortgage Loan:





 


	
         

        Mortgage Loan:
	
         

        Ten Thousand

	
         

        Mortgage Loan
        Borrower:
	
         

        SM 10000
        Property, LLC

	
         

        Date of the Mortgage Loan
        and the Mortgage:
	
         

         

        April 12,
        2019

	
         

        Initial Principal
        Amount of Mortgage Loan:
	
         

        $350,000,000.00

	
         

        Location of Mortgaged Property:
	
         

        Ten
        Thousand Luxury Rental Tower, Los Angeles, California

	
         

        Initial
        Maturity Date:
	
         

        May 6, 2029



 


 


	B.	Description
of 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 Note A-B
        Percentage Interest:
	
         

        37.143%

	Senior Note Rate:	
         

        4.150%

	Note A-B Rate:	
         

        4.150%

	Note Default Interest Spread:	
        A rate per annum equal
        to the lesser of

        (a) the Maximum Legal Rate minus
        the Interest Rate and (b) four percent (4%).



 



    	 	A-2	 



     


    




EXHIBIT
B


 


Initial Noteholders:


 


NATIXIS
REAL ESTATE CAPITAL LLC


 


Notice Address:


 


Natixis Real
Estate Capital LLC

 1251 Avenue of the
Americas

 New York, New York 10020


Attention: Real Estate
Administration

 Facsimile: (212) 891-5777


Email:
USCIBSAFAssetManagementTeam@natixis.com

 with a copy to:


Natixis North America
LLC

 Office of the General Counsel

 1251 Avenue of the Americas

 New York, New
York 10020


 


for legal
notices, with a copy to: 

CMBSlegal.notices@natixis.com



    	 	B-1	 



     


    







EXHIBIT
C

PERMITTED FUND MANAGERS


 


 


 


Westbrook
Partners

 iStar Financial Inc.

 Capital Trust


Archon Capital, L.P.


Whitehall Street
Real Estate Fund, L.P.

 The Blackstone Group


Normandy
Real Estate Partners

 Dune Real Estate Partners

 AllianceBernstein


Rockwood

 RREEF Funds

 Hudson
Advisors


Artemis
Real Estate Partners

 Apollo Real Estate Advisors

 Colony Capital, Inc.


Praedium Group


Fortress Investment
Group, LLC

 Lonestar Opportunity Funds

 Clarion Partners


Walton Street Capital, LLC


Starwood Financial Trust

 BlackRock, Inc.


Eightfold Real Estate Capital,
L.P.

 Rialto Capital Management, LLC

 Rialto Capital Advisors, LLC

 Raith Capital Partners, LLC



    	 	C-1	 



     


    




 


SCHEDULE
I


 


If a Non-Lead
Senior Note is included in a Securitization,
it shall cause its respective Non-Lead
Securitization Servicing Agreement to contain provisions to the effect that:


 


(i)               
the applicable master servicer and trustee for such
Securitization shall be required to notify
the master servicer, special servicer
and trustee of each other Securitization of the amount of any P&I Advance
it has made with respect to the Note included
in such Securitization within two Business Days of making such advance;


 


(ii)               
if the applicable master servicer, special servicer or trustee
determines that a proposed P&I Advance, if made,
or any outstanding P&I Advance previously made,
would be, or is, as applicable, a nonrecoverable advance, the
master servicer shall provide the other servicers written
notice of such determination within 2 Business Days after such determination
was made;


 


(iii)                
in the event a Non-Lead Senior Noteholder is responsible
for its proportionate share of any nonrecoverable advances (or any
other portion of a nonrecoverable advance) (and advance interest thereon) or
other fee or expense, and funds received with
respect to a Non-Lead Senior Note are insufficient
to cover such amounts, (x) the related master
servicer will be required to pay the Master Servicer,
Special Servicer or Trustee, as applicable,
out of general funds in the collection account (or
equivalent account) established under the Non-Lead
Securitization Servicing Agreement and (y) if the Securitization
Servicing Agreement permits the Master Servicer, Special Servicer or Trustee
to pay itself from the general account of the trust established under the Lead
Securitization, then the master servicer under the Non-Lead Securitization
Servicing Agreement will be required to reimburse the
trust established under the Lead Securitization out of general funds in the
collection account (or equivalent account)
established under the Non-Lead Securitization Servicing Agreement;


 


(iv)               
each of the Master Servicer and the Special Servicer
shall be indemnified (as and to
the extent the trust established under the Lead Securitization is required to indemnify
each such party) against any claims,
losses, penalties, fines, forfeitures, legal fees and related
costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any servicing
agreement that relate solely to its servicing of the Mortgage Loan,
as applicable, and the master servicer under the Non-Lead Securitization
Servicing Agreement will be required to reimburse
the Master Servicer, Special Servicer or Trustee, as applicable, out of general
funds in the collection account (or equivalent account) established under
the Non-Lead Securitization Servicing Agreement for the Non-Lead Noteholder’s
proportionate share of such amounts;


 


(v)               
each of the trustee and the master servicer
under a Non-Lead Securitization Servicing Agreement, as applicable,
shall acknowledge that,



    	 	Schedule I-1	 



     


    




(i) each of
the Master Servicer and the Trustee will
be a third party beneficiary under such Non-Lead
Securitization Servicing Agreement with respect to
any provisions therein relating to (1) the reimbursement for such Non-Lead Noteholder’s
proportionate share of any nonrecoverable advances made with respect to such
Non-Lead Senior Note by the Master Servicer or the
Trustee and (2) as to the Master Servicer
only, the indemnification of the Master
Servicer against the Non-Lead Noteholder’s proportionate share of
any claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments and any other
costs, liabilities, fees and expenses, incurred in connection with any Servicing
Agreement or Non-Lead Securitization Servicing Agreement
and relating to the Non-Lead Senior
Note and (ii) the Special Servicer will be a third
party beneficiary under such Non-Lead Securitization Servicing Agreement
with respect to any provisions therein relating to (1) the reimbursement
for the Non- Lead Senior
Noteholder’s proportionate share of any nonrecoverable advances made with
respect to such Non-Lead Senior Note by the Special Servicer
(it being understood that the
Special Servicer is not required to make
any Advances) and (2) the indemnification of the Special Servicer against
such Non-Lead Senior Noteholder’s proportionate share of any claims,
losses, penalties, fines, forfeitures, legal
fees and related costs, judgments and any other costs, liabilities, fees
and expenses, incurred in connection with any Servicing Agreement
or Non- Lead Securitization Servicing
Agreement and relating to such
Non-Lead Senior Note; and


 


(vi)       the
Master Servicer and the Special Servicer
shall be third party beneficiaries of the foregoing provisions.



    	 	Schedule I-2